June 2014. All rights reserved. Public Health and Tobacco ... · an association between access to healthy food and the prevalence of overweight and obesity. Specifically, studies

June 2014. All rights reserved. Public Health and Tobacco Policy Center.

Contact:

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The Public Health and Tobacco Policy Center is a resource for the New York Department of

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State Tobacco Control Program, the New York Cancer Prevention Program, as well as the

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Public Health and Tobacco Policy Center

Table of Contents i


Healthy Retailing: Improving Access to Healthy Foods at the Corner Store 1

Individuals who suffer from obesity and

overweight are at significant risk for

serious chronic diseases such as cancer,

coronary artery disease, stroke and

diabetes. In New York, nearly two thirds of

the population is considered obese or

overweight, leading to a significant burden

on public health and imposing substantial

healthcare and other economic costs to

the state.

The causes of obesity and overweight are

complex and include genetic makeup, the

environment, poor nutrition, and lack of

physical activity. Some studies have found

an association between access to healthy

food and the prevalence of overweight

and obesity. Specifically, studies have

found an association between a

community’s poor access to nutritious

foods, called “food deserts,” and its

increased incidence of obesity and

overweight. Food deserts are often found

in low-socioeconomic communities;

residents of food deserts typically have

limited access to larger chain grocery

stores and easy access to small food

retailers (e.g., convenience stores, corner

stores or bodegas) and fast food

restaurants. Policies that spur the retail

environment to improve the accessibility

of nutritious food may help lower obesity

and overweight levels, thereby reducing

the incidence of chronic disease.

This report focuses on the small food

retailer environment. It includes three

model policies that aim to change this

environment by increasing the amount of

nutritious foods carried by these retailers

in food deserts. One model is a voluntary

certification program, incentivizing small

food retailers to increase their stock of

healthy food and promote its availability to

the community. The second model is a

licensing ordinance that requires small

food retailers to carry staple food items

(whole grains, low fat dairy, protein, fruits

and vegetables). The third model is a

zoning amendment that incentivizes the

development of small retailers that carry

staple food items. All three require the

commitment and support of the

community to make the “best changes”

(those that a community will appreciate

and utilize) and to ensure those changes

are sustainable.

Obesity and overweight are public health

epidemics that are harmful to health and

economic interests. In 2012, 35.8percent

of adults were overweight, and 28.1

percent of those adults were obese.1

Being overweight or obese increases the

risk of serious health complications

including:

Coronary heart disease

Type 2 diabetes

Cancers (endometrial, breast, colon)

Hypertension (high blood pressure)

Dyslipidemia (high cholesterol or high

levels of triglycerides)

Stroke

Liver and Gallbladder disease

Sleep apnea and respiratory

problems

Osteoarthritis (degeneration of

cartilage under a bone in a joint)

Gynecological problems (abnormal

menses, infertility)2


2 Healthy Retailing: Improving Access to Healthy Foods at the Corner Store

In addition to the serious health

consequences of being overweight and

obese, having a majority of U.S. adults at

increased risk for these serious illnesses

translates to an economic and health care

burden for the entire population. The costs

of overweight and obesity include direct

medical expenses (for diagnosis and

treatment) as well as indirect costs, such

as the value of income from decreased

productivity, absenteeism, and future

income lost through premature death.3 In

2008 dollars, the direct medical care cost

alone of obesity in the U.S. was estimated

to be $147 billion.4

Children living with obesity face similar

health risks and are more likely to be

obese as adults.5 In 2009-2010, 18.4

percent of children ages 12-19 years and

18 percent of children ages 6-11years

were obese.6 While childhood obesity has

increased overall, it has disproportionately

increased in “lower income, multi-ethnic

communities.”7 In households with

incomes below 130 percent of the poverty

level, 21.1 percent of boys and 19.3

percent of girls are obese.8 This compared

to households with incomes at or above

350 percent of the poverty level, where

only 11.9 percent of boys and 12.0

percent of girls are obese.9 Between 2007

and 2008, Hispanic boys ages 2-19 years

were found to be “significantly more likely”

to be obese than non-Hispanic white boys

in the same age group.10 During the same

time period, non-Hispanic black girls were

“significantly more likely” to be obese than

non-Hispanic white girls.11

Obesity and overweight are terms that

describe individuals whose percentage of

body fat is higher than is healthy. The

Body Mass Index (BMI), a number

calculated based on a person’s weight

and height, offers a strong correlation to

the amount of body fat an individual has.

An adult with a BMI between 25 and 29.9

is considered overweight; an adult with a

BMI of 30 and higher is classified as

obese.1 For children, overweight and

obesity is measured using a BMI

correlated to age and sex percentile since

“children’s body composition varies as

they age between boys and girls.”1

Children with a BMI above the 85th

percentile and lower than the 95th

percentile are considered overweight for

children of the same age and sex.

Children with a BMI in the 95th percentile

or above are considered obese.

Important to note is that the BMI

measurement, while it correlates with

body fat, is not a direct measurement of

an individual’s body fat. It instead

classifies an individual as overweight or

obese if their weight is above a range

considered healthy for their height. Other

methods to more directly determine an

individual’s body fat measure include

skinfold measurements and waist

circumference, ultrasounds, and magnetic

resonance imaging (MRI).

Source: CTR. FOR DISEASE CONTROL AND PREV.,

OVERWEIGHT AND OBESITY: DEFINING OVERWEIGHT

AND OBESITY

http://www.cdc.gov/obesity/adult/defining.html, (last

visited June 10, 2013).

http://www.cdc.gov/obesity/adult/defining.html



In New York State, obesity and

overweight rates are high in both adult

and adolescent populations; obesity rates

among adults are highest in minority and

lower socioeconomic communities.12 The

prevalence of adults that are obese and

overweight in the state increased from 42

percent in 1997 to nearly 61 percent in

2012.13 In 2011 it was estimated that25.7

percent of New York high school students

(excluding New York City) were either

obese or overweight.14

In 2003 the cost of treating obesity related

health problems in New York State was

an estimated $6.1 billion.15 In 2011,

obesity related health care costs in New

York were estimated at $11.8 billion.16

Roughly $4.3 billion of this was paid by

Medicaid17 and another $7.5 billion was

paid by Medicare, employers’ and

workers’ health insurance premiums, and

uninsured individuals.18 Three hundred

twenty-seven ($327) million of that was

attributed to medical care for obese

children.19

The causes of obesity and overweight are

varied and complex. Important factors

include genetic makeup, food marketing

strategies, and changes in agricultural

practices.20 Environments that promote

physical inactivity and increased

consumption of less healthy food (poor

nutrition) also impact the incidence of

obesity and its related diseases.21 This

report focuses on poor nutrition (as a

result of poor access to healthier food) as

one cause of obesity and overweight.

Factors related to nutrition that result in

overweight and obesity include less

access to stores that sell healthy

affordable food, while closely situated

near an abundance of vendors selling

high calorie and fatty foods.22

The United States Centers for Disease

Control and Prevention (CDC)

recommends policy and environmental

approaches to make it easier for people to

make healthier choices.23 Such policies

complement strategies that educate the

public and provide support for those who

want to lead a healthier lifestyle.24 CDC’s

target areas for policy development

include increasing the consumption of

fruits and vegetables and decreasing the

consumption of sugary drinks and high-

energy-dense foods; in other words,

policies that promote better nutrition.25

Many circumstances lead to poor nutrition,

including poor knowledge about a healthy

diet, marketing strategies promoting high-

energy-dense foods, scarcity of healthy

food choices, and the relative affordability

of a healthy diet. Low-income

communities often have a shortage of

large grocery stores or supermarkets.

Residents living in food deserts may be

limited to purchasing food at convenience

and corner stores where healthier items

are in short supply and relatively more

expensive than high-energy-dense

foods.26



Food deserts are characterized as areas

with little access to affordable fruits,

vegetables, whole grains, low-fat dairy

products, and other foods “that make up

the full range of a healthy diet.”27 They are

found in both urban and rural areas.28 In

low-income, urban food deserts the

challenge of healthy eating is

compounded by both the high price of

nutritious food and the high prevalence of

convenience stores and restaurants

offering inexpensive food options high in

calories and fat but low in healthy

nutrients.29 In addition, convenience

stores and small grocers located in low-

income urban areas typically charge

higher prices for nutritious options than

larger supermarkets.30 As a result, high-

energy-dense foods are more readily

available and affordable than healthier

foods and contribute to poor nutrition.

A 2011 study of food deserts in New York

found that

Food deserts exist in 32 of 62 New

York counties;

656,000+ New Yorkers live in a food

desert; and

86 percent of people living in a food

desert live in urban areas and 14

percent reside in rural areas.31

Studies suggest an association between

the types of stores located in food deserts

and the BMI of their residents (although

the results have been mixed and there

exists a complex relationship among

access to nutritious foods, socioeconomic

status, and health status).32 For example,

one study found that access to chain

supermarkets had a negative relationship

with youth BMI and overweight status,

while increased density of convenience

stores was associated with higher BMI

and overweight status. 33 (However, there

was no “statistically significant”

association between availability of non-

chain supermarkets and other grocery

stores and adolescent weight

outcomes.)34

Another study assessed the “relationship

between neighborhood access to foods

and weight status” through a

comprehensive review of research

conducted between 1985 and 2008.35 It

found that a majority of studies during this

time period suggested that those with

access to supermarkets and retailers with

The definition commonly used by many

federal government agencies is criticized by

some organizations as failing to accurately

categorize food deserts. Many federal

agencies use the North American Industry

Classification System’s (NAICS)

categorization of food retail outlets, which

combines small corner grocers with

supermarkets (supermarkets being your

large stores such as Safeway, Whole

Foods, or Stop n Shop). Thus, a community

that does not contain a supermarket but

contains, for example, two small grocers

that sell only liquor and junk food would be

categorized as having two food retail outlets

and as a result would not be considered a

food desert. In reality under this

hypothetical, food availability might be quite

limited compared to a community with a

supermarket.

Source: THE FOOD EMPOWERMENT PROJECT,

FOOD DESERTS,

http://www.foodispower.org/food_deserts.php,

(last visited June 10, 2013)

http://www.foodispower.org/food_deserts.php



healthier foods tended to have a healthier

food intake.36 Further, the review noted

that several studies indicated that better

access to supermarkets related to

reduced obesity levels and that,

conversely, limited access to

supermarkets and greater access to

convenience stores is related to higher

levels of obesity.37 It found that those

living in rural areas, minority communities,

or low-income areas were likely to have

poor access to supermarkets, large chain

grocery stores (as opposed to smaller,

independently owned grocers), and

healthy food products.38 The review

concluded that “[i]n general, research

suggests that neighborhood residents who

have better access to supermarkets and

limited access to convenience stores tend

to have healthier diets and lower levels of

obesity.”39

Consistent with these and other studies,

results of a 2006 study support an

association between local food

environment and obesity, finding

convenience to a food source in a

community is “an important predictor of

food habits,” concluding that the local food

environment “may play an important role

in the prevention of overweight and

obesity.”40 This study found that access to

supermarkets (defined by the study as

large corporate chain food stores) is

associated with lower rates of overweight,

obesity, and hypertension.41 The

availability of convenience stores (defined

as a store carrying a limited selection of

food) was associated with increased

overweight rates.42 Interestingly, the study

found that the negative impact of

convenience stores on health may exist

even if the community also includes a

supermarket. The study found that those

who live in areas with supermarkets and

convenience stores have a 35 percent

higher rate of obesity than those who live

in communities with only a supermarket

available for food purchases.43

The need for accessible healthy food is of

heightened importance in communities

where residents may be unable to easily

get to larger supermarkets. For example,

low-income neighborhoods and

communities of color typically have fewer

grocery stores but more fast food

restaurants and convenience stores than

more affluent and largely Caucasian

neighborhoods.44 If a grocery store is not

accessible to these communities, and

residents lack a private vehicle or reliable

public transportation, then residents turn

to high-calorie, low-nutrient food available

in convenience stores and fast food

restaurants.45 One study noted that low-

income individuals report only one trip per

month to supermarkets for large food

purchases and, as a result, there might be

heavier reliance on convenience stores to

fill in the gap.46

Another study examined the relationship

between access and in-store availability of

fruit and vegetables to consumption and

did not limit its analysis to access to

grocery stores and supermarkets, in light

of the fact that in urban neighborhoods

there might be a greater concentration of

smaller food stores.47 The researchers

assessed household distances to food

stores as well as availability of fruits and

vegetables in these stores based on shelf

space.48 The study found that individuals

who lived within 100 meters of a store

carrying fruits and vegetables had a

higher intake of vegetables and fruit than

those that did not.49 Additionally,

individuals with no store providing

vegetables within a block of their home



had a lower intake of vegetables than

those living within one block of retail

offering up to 3 meters of linear shelf

space for fresh vegetables (those with

more than 3 linear meters of fresh

vegetable shelf space had the highest

intake of vegetables).50

The price of certain products also impacts

community access to staple foods. Small

grocers and corner stores are unlikely to

have the same relationship with suppliers

of foods, like produce, that large

supermarkets do since they are unable to

purchase the large volume of food

products some wholesalers and

distributors require. 51 As a result, it costs

the corner store more to acquire those

food products than it will the supermarket,

and the higher price will be passed on to

the consumers who rely on these smaller

stores for their food purchases.52 Further

compounding the problem, the more

affordable items are often the processed

products with high fat and sugar content.53

The result is that the food that is cheaper

and easily accessible in food deserts is

also detrimental to residents’ health.

Policies that increase neighborhood

access to and availability of healthier food

may lead to improved health of its

residents. Based on recommendations

from the CDC and other health

organizations, communities across the

country have developed programs to

improve access to healthy food in

underserved areas. These programs aim

to attract new food stores to underserved

areas, improve or develop reliable

transportation to and from full-service food

stores, and provide stores with assistance

to upgrade shelving and equipment that

will enable them to advantageously stock

and display fruits, vegetables and other

staple foods. 54

The Healthy Food Financing Initiative

(“HFFI”) is a federal program that aims to

improve access to nutritious food by

bringing grocery stores and healthy food

retailers to “underserved urban and rural

communities.”55 HFFI provides financing

to develop and equip grocery stores, small

retailers, corner stores, and farmers'

markets to sell healthy food through

programs of the United States Department

of Agriculture, the United States Treasury,

and the U.S. Department of Health and

Human Services.56 Many organizations

are eligible for these funding opportunities

including businesses, local governments,

universities, non –profit organizations,

state agriculture departments, community

development corporations, and Treasury-

certified community development financial



institutions.57 One example of a program

funded through the HFFI is the New

Markets Tax Credit Program allowing

“allocates” to invest in programs in all 50

states.58 An example of this program in

action in New York State is the Low

Income Investment Fund, which used its

allocation to invest in development

projects that included financing the

development of grocery stores in

underserved communities.59

The Philadelphia Department of Public

Health’s (PDPH) “Get Healthy Philly

Initiative” aims to make healthy food easily

accessible and more affordable for city

residents.60 As part of the Initiative, 630

stores have voluntarily enrolled in a

“Healthy Corner Store Network”

(Network).61 The Network was developed

by the Food Trust, a nonprofit that works

to ensure equitable access to affordable

and nutritious food,62 in partnership with

PDPH.63

The Network focuses on recruiting corner

stores located in low-income

neighborhoods as identified through U.S.

census data.64 Corner stores comprising

less than 2,000 square feet, no more than

four aisles, and a single cash register are

eligible to join the Network.65 Stores that

participate in the Network progress

through four phases of the program. At

the basic level, a retailer is required to

introduce a minimal variety of new foods

and, after doing so, receives a $100 cash

incentive. Additional phases include

substantial changes to store inventory, the

provision of free marketing materials,

professional development for the owner,

and assistance with store conversion

(e.g., new shelving, refrigeration units or

redesign).66

Stores participating at the basic level add

four new products from healthy food

categories identified by the Initiative,

which include fruits and vegetables (fresh,

frozen and canned), dairy, whole grains

and proteins.67 Stores have the option of

advanced participation (in exchange for

additional incentives) by adding more

products.68 The Network provided eligible

participating stores with marketing

materials for the new products; training in

the proper storage, display, and

procurement of new products; and

equipment, such as refrigerators or

shelving.69 Participating stores were

enthusiastic about the new inventory,

introducing an average of 36 new healthy

products, which exceeded the four

required at the basic level of

participation.70

After two years, the Network found that

many corner stores throughout the city are

willing to carry the new inventory, with

many participating stores stocking well

above the minimum number of new

healthy products. 71 It also found that

additional financial support, training in the

storage and display of the new products,

and procurement assistance during the

program was necessary to ensure the

profitability and sustainability of the

changes to their inventory. 72 With these

investments from the community, retailers

were far more likely to be successful in

selling healthier food options to the

community.73



The Healthy Corner Store Initiative in

Minneapolis (“Minneapolis Initiative”)

supports retailers in making healthy foods

more visible, affordable, and attractive to

consumers.74 The Minneapolis Initiative

was born out of prior efforts to improve

access to healthy food in the city,

including a 2008 ordinance that required

grocers to carry five varieties of perishable

items (“ordinance”) and a 2009 federal

requirement that WIC-certified stores

carry a minimum of seven varieties of

fresh produce.75 After enacting the

ordinance, the city found that while stores

strove to comply, the stocking of quality

healthy products was not always the end

result.76 The Minneapolis Department of

Health found the ordinance to be an

important tool, but that store owners also

needed additional support to realize the

goals of the law. The city implemented the

Minneapolis Initiative to provide that

additional support.77

The Minneapolis Initiative recruits stores

in low-income neighborhoods. The

program began with 8 stores and has

since added 29 stores.78 Participating

stores are required to comply with certain

conditions, such as increasing the

prominent displays of healthy foods,

displaying marketing materials highlighting

the new inventory, participating in training,

documenting sales of the new products,

and implementing physical changes to the

store.79 To assist stores with these

changes, the program hired a consultant

to provide grocery and marketing

expertise. The consultant provides

guidance to store owners in the proper

display and storage of produce, assists

stores with the procurement of affordable

produce, and identifies “assets and

enhancement strategies” in each store to

help stores succeed with the new

inventory.80

Initial review of the program found that

most participating store owners

successfully sold their inventory of

produce. Stores accepting Women,

Infants, & Children (WIC) benefits and

Supplemental Nutritional Assistance

Program (SNAP) benefits were more

successful in selling produce than

Electronic Benefits Transfer (EBT) only

stores. Overall, owners reported more

sales of, and more demand for, fresh

produce than existed prior to participating

in the Minneapolis Initiative.81

In 2012, the City of Rochester amended

its zoning code to incentivize the land use

for “healthier” retail stores and limit land

use for stores offering less healthy

products. Prior to the amendment, the

zoning code defined a catch-all “retail

sales and services” use category, and

identified the zones in which such uses

were permissible. The amendment broke

down this use category into four separate

retail categories: low-impact, high-impact,

specialty, and full-line food stores.82 These

new categories are largely defined by the

types of products retailers sell. For

example, full-line food stores are those

offering a “full selection of food products

including at least a variety of fresh

produce” and which sell no more than one

of the following “unhealthy” products:

tobacco, beer/wine coolers or lottery.83



A “high-impact” business is defined as

one that sells firearms, tobacco, lottery

and/or beer or wine coolers.84 The use of

land for such a retail business is

considered to negatively impact the

surrounding community, so the new

zoning law places the most restrictions on

this type of use(limited to primarily areas

located farther from residential and central

neighborhood business districts).85 The

new law also limits the density of high-

impact businesses—these retailers must

be located at least 500 feet from other

high-impact businesses and from other

“protected” areas, such as schools.86

Thus, the city discourages development of

these less healthy businesses.

“Low impact” retailers are those that do

not fall into the other retail categories and

thus, by definition, do not sell less healthy

products such as tobacco or beer and

wine coolers.87 Full-line food and low-

impact retailers are permitted to locate in

most areas of the city—notably, in certain

residential areas and central

neighborhood business districts near

residential districts.88 By permitting these

types of retail uses in more areas of the

city (and limiting the high-impact uses),

Rochester has provided an incentive for

stores that limit the sale of certain items

that may negatively affect the community.

After finding a widespread shortage of

supermarkets and grocery stores,

particularly in low-income neighborhoods,

New York City implemented the FRESH

Food Store Area Program.89 The program

provides zoning and financial incentives to

attract new grocery stores to underserved

communities.90 The goal is to improve

access to full-service food stores, as well

as increase competition to make food

more affordable in underserved

neighborhoods.91

Grocery stores that renovate existing retail

space or developers constructing or

renovating retail space to be leased to a

grocer are eligible for financing through

the program when located in designated

areas.92 Participating stores are required

to stock a minimum amount of perishable

foods and fresh produce.93 The program

provides eligible grocers and developers

with zoning incentives including additional

development rights and a reduction in the

number of parking spaces required.94

Stores may also be eligible for financial

incentives, including real estate tax

reductions, sales tax exemptions for

construction materials and store

equipment, or a mortgage recording tax

deferral.95



An example of a FRESH program

supermarket development can be found in

the Bronx where a Fine Fare supermarket

was to be developed in a vacant 19,000

square foot building.96 As of 2013, Under

the FRESH program 16 projects have

been approved.97 Out of the 16 approved

three were approved for zoning benefits,

and four have completed construction.98

New York State established the Healthy

Food & Healthy Communities (HFHC)

fund in 2009.99 The HFHC is a $30 million

program that provides grants and loans to

food retailers located in underserved

areas.100 Financing through the program

can be used for land acquisition,

predevelopment, construction or

rehabilitation costs, equipment, and

infrastructure (either for new markets or

the expansion of existing facilities).101

Participating stores must dedicate 66

percent of retail space to the sale of food

products, and most of the products must

be perishable or “non-prepared” foods.102

Stores must also accept SNAP and WIC

benefits.103 An example of a supermarket

receiving financing from HFHC is

Foodtown in Mount Vernon, New York.104

Financing from HFHC will allow this store

to complete a full renovation in this

downtown store located in a densely

populated, low-income community.105

Funding will expand Foodtown’s square

footage in order to carry more produce,

fish, and meat and better serve residents

of the community.106

GrowNYC is a non-profit organization

based in New York City that supports

initiatives that improve residents’ quality of

life through environmental programs

including recycling, farmers’ markets,

open space development, and educational

programs.107 One goal of GrowNYC is to

bring healthy local food to underserved

areas of the City. 108 GrowNYC’s farmers’

market program includes the

organization’s Greenmarket Co., which

serves as a wholesale distribution service

delivering regionally-grown food to City

grocery stores, bodegas and

restaurants.109

In furtherance of this goal, GrowNYC

works with the Brownsville Partnership in

Brooklyn to expand access to fresh

produce in underserved Kings County,

which has a higher incidence of obesity

and type 2 diabetes than most New York

counties.110 Through this program,

GrowNYC distributes produce from local

farmers to local retailers to increase

access to fresh, local produce.111 It also

assists retailers in selecting specific

produce and products to carry, creating

displays to encourage purchasing,

providing advertising materials and in-

store display equipment, and assisting

with proper food storage.112



There are a number of strategies available

to communities to improve access to and

availability of healthy food. The option that

will be the most effective will depend on a

number of factors including community

goals, demographics and political

environment.

This report includes three model policies

for consideration by New York

communities: (1) a voluntary retailer

certification program (2) a retailer

licensing ordinance and (3) a retailer

zoning ordinance. The policies focus on

improving the food retail environment in

smaller food retailers (e.g., convenience

stores, corner stores, small food marts,

and bodegas). As discussed above, these

smaller food retailers typically carry

energy dense foods and very little

produce.113 The strategies employed in

the models are relatively new and

communities with similar programs have

not yet determined their long-term

effectiveness. The rationale behind them

is changes to the retail environment may

allow the healthier choice to become the

default choice in communities.114

These models were designed for use by

local governments in New York. They

were developed by incorporating elements

of existing models, proposals, and

programs. The models are written flexibly

so that they can be implemented by a

county or municipality (city, town, or

village). As models, they are intended to

be modified or tailored to fit the particular

needs of a community.

The model voluntary retailer certification

program is intended to provide a

structured and progressive program to

incentivize small food retailers to

incorporate healthier food, such as fresh

produce, into their inventories.115 The

program begins with the recruitment of a

store owner to the program. When the

store commits to the program

requirements it becomes eligible for

benefits and incentives designed to help it

succeed with the program. The

community organization or local

government agency administering the

program then monitors the store’s

compliance with program requirements

and provides technical assistance

necessary to aid the stores success with

the new inventory.

The model certification program does not

require community-wide application. A

community considering a voluntary retailer

program may choose to implement a pilot

program on a small scale, or dive right in

and apply it community-wide. The

community should assess its food retail

environment and available resources to

determine what type of program will make

the most positive impact.

The model certification program describes

four phases (or levels) of certification,

each requiring increased commitment

from the retailer. It includes suggestions

for store requirements in each phase, as

well as incentives to encourage stores to

increase their commitment. For example,

a program may first recruit a retailer to

add a small minimum of staple foods to

the store’s inventory. In exchange, that

retailer might be eligible for a payment of

$100 or training on the proper handling



and storage of those items. The

requirements in each phase build upon

the requirements in previous phases and

allow stores to become comfortable with

the changes in a gradual (and perhaps

more sustainable) way.

The benefits of the program are twofold:

Retailers volunteer to participate at a level

of commitment they are comfortable with

and the program may inform the

community whether a broader (or

mandatory) program will likely improve the

health of its residents (or is desirable). A

pilot program consisting of a small number

of stores may educate the community

about its retail environment and permit

development of a broader program

tailored to that community. Moreover, an

initial pilot program allows a community to

focus on specific underserved

neighborhoods and allocate resources

where needed most.

A voluntary program with phased-in

requirements provides flexibility to food

retailers by allowing them to gradually

introduce new staple food items, reduce

unhealthy items, and make store

upgrades to highlight the healthier food

products.116 By making the changes

gradually, both the program and the store

owner can assess community interest,

determine the most popular products for a

particular area, and adjust individual store

modifications to maximize sustainability.

The model retailer licensing ordinance

requires small food retailers to obtain a

license before engaging in the sale of food

products. A license grants legal

permission to do something that would

otherwise be unlawful. It may require the

license holder to comply with certain

conditions and can therefore be an

important tool for realizing public health

goals, such as improving access to

healthy food. Not only does the license

impose responsibilities on all retailers in

the community (thereby creating a level

playing field), but it also serves as an

enforcement tool to ensure compliance

with applicable laws and license

conditions (e.g., can be revoked as

punishment for noncompliance, thereby

ending permission to engage in food

sales). Further, the license pays for itself

since the fee paid by retailers may be

used to fund both the administration of the

licensing system, as well as education

and enforcement efforts.

The model food retailer license requires

that a certain percentage of retail space

(shelf and floor space) be dedicated to

“staple food items,” which include low fat

dairy products, lean proteins, vegetables,

fruits, and whole grains. It also includes

suggestions for “additional performance

standards” that are not required, but

encourage retailer adoption through

additional incentives.117 The model grants

the licensing or enforcement agency

authority to conduct education and

training programs and to impose penalties

on retailers who fail to comply with the

licensing conditions.



The model zoning amendment identifies

options for incentivizing the development

of corner stores that carry staple foods

through a community’s zoning code.

Land use regulations can be a powerful

tool through which local governments may

regulate the use of land for certain

businesses. The purpose of zoning laws is

to regulate the use of land within a

particular jurisdiction. Local governments

use zoning laws to divide a jurisdiction

into certain districts (or zones), and

identify the uses permitted (or prohibited)

within each district. For example, many

local governments use zoning to separate

uses of land that are incompatible—such

as separating manufacturing plants from

residential neighborhoods.118

New York communities currently use

zoning laws to regulate a number of

businesses. For example, zoning is often

used to regulate the location and

operation of adult businesses and liquor

stores because of the impact these

businesses have on the health or well-

being of residents. Similarly, in other

states, zoning has been used to regulate

the distance a tobacco retailer may locate

from a school and prohibit the sale of

tobacco products through self-service

displays or to certain customers.119 The

model zoning amendment suggests ways

in which New York communities might use

the same strategy to ensure the adequate

distribution of healthy foods.

It is important to remember that zoning is

largely a prospective policy solution; it

largely affects future land use, rather than

current land use. Notwithstanding this

general rule and as discussed in more

detail in the next section, a particular

community may permit a structured

phase-out of existing land uses that do not

conform to an amended zoning plan.

Regardless, the public health impact of a

new zoning law will be realized gradually

over time, rather than immediately.

As with any new policy, potential legal

issues must be taken into consideration.

Since retailers participating in a voluntary

certification policy are “volunteering” for

the program, the legal considerations

discussed below apply only to the model

retailer licensing ordinance and the model

zoning amendment.

The State of New York possesses broad

“police powers” to promote the public

health and welfare of its residents.

Through the New York State Constitution

and state statute, New York has conveyed

its police powers to local governments,

giving them the authority to enact laws

and adopt regulations to protect and

promote the health, safety, morals and

general welfare of their residents.120 This

includes the authority to regulate

commercial activities.121

There is a limit to this broad power, and

local governments cannot enact laws that

are inconsistent or conflict with the New

York Constitution or State law.122

Opponents to this policy might argue that



regulating food retailers is outside of local

government’s power. They might argue

that it either directly conflicts with a State

law (conflict preemption), or the State has

decided to fully regulate food retailers to

the exclusion of all local regulation (field

preemption).123

A challenge based on preemption is

unlikely to succeed. The state currently

regulates “food processing,” which

includes baking, cooking, bottling, curing,

corning blending, cutting, and slicing of

food products.124 The state also imposes

certain sanitation requirements on food

retailers.125 The Department of Agriculture

and Markets regulates the labeling of

certain meats, the sale of frozen meat

(seafood, meat, poultry), the availability of

products as advertised, and sale of fruit in

smaller quantities.126 None of these laws

specifically preempt or conflict with a local

license requirement for small food

retailers. Moreover, even considered

together, these laws do not indicate a

legislative intent to fully regulate retailers

and preempt local regulation.

When state governments collect taxes,

they raise general revenue for the state

that can be used to finance various state-

run operations. When a government sets

a license fee, the fee may have to be used

specifically to fund the regulation of the

industry being licensed. In New York,

taxes can be used to raise revenue for the

government to fund general operations,

but licensing fees cannot. A local

government should be cautious and may

want to determine whether it has authority

to administer certain types of local taxes.

Care should be taken about how license-

related fees are treated so that the fees

are not challenged as illegal “taxes” for

general revenue-generating purposes.

Licensing fees have been challenged in

the courts as illegal taxes. The resulting

New York case law indicates that license

fees should be set at a level that will fund

the cost of administering and enforcing

the licensing system.127 For example,

when building permit fees set by the

Commissioner of Health Services were

challenged in court, New York’s highest

court found that the fee was valid because

the commissioner set the fees based on a

study that established the department’s

costs in issuing the permits.128 The study

presented information regarding the

number of inspections conducted, related

enforcement services, and the

department’s expenses.129 The court held

that the fee was legal as there was a

“reasonable correspondence” between the

cost of enforcement and the amount of the

permit fee.130

A lower New York court held that an

ordinance that required the payment of a

license fee by peddlers and transient

merchants was valid because “[a] license

fee may be imposed under such an

ordinance which is sufficient to

compensate the municipality for the

expense of issuing and recording the

license, for securing police control over

the matter licensed, and for the cost of

inspecting and regulating such business.

To that extent any fee imposed is not a

tax on the business.”131 Because the fee

specifically funded the municipality’s costs

in implementing and enforcing the

licensing program, the court found that the

fees were not a tax.

In another New York case regarding the

legality of licensing fees, medical doctors



challenged registration fees required by

the Department of Health for X-ray

equipment and radioactive materials

installations.132 In that instance, the court

found that licensing fees must be narrowly

tailored to fund the cost of enforcement,

reasoning:

In dealing with a licensing or registration

fee imposed by an administrative agency,

as in the case at bar, such a fee may not

exceed the sum which will compensate

the licensing or registration authority, for

issuing and recording the license or

registration and pay for the inspection to

see the enforcing of the licensing or

registration provisions.133

These cases highlight the importance of

researching licensing and enforcement

costs in order to reasonably determine the

license fee. When it cannot be established

that a fee is used to satisfy the cost of the

licensing program, the court may find it to

be an illegal tax. For instance, when a

village in New York increased residential

permit fees and the fees were challenged,

an appeals court found that because the

village did not provide sufficient

supporting documentation to justifying the

new fee, the fee was not valid.134

Despite this restriction, license fees can

be used to fund a wide range of activities

that are necessary to successfully

maintain a food retailer licensing program.

For example, fees may be used, among

many other things, to fund the cost of

issuing licenses, educate the regulated

businesses and the public, hire additional

staff to administer the license program,

train inspectors, conduct enforcement

inspections, and produce related signage

and other materials.

Through its enabling acts, New York State

has granted cities, towns and villages the

authority to regulate the use of land within

their borders through the adoption of

zoning laws.135 Zoning laws may be used

to promote “health and general welfare”

for a community’s residents, and this may

include the regulation of business for such

purposes.136

As previously discussed, municipalities

have broad police powers to regulate

businesses (e.g., through licensing

requirements). However, while a

municipality’s zoning authority stems from

this police power,137 the scope of zoning

law is limited to the regulation of land use,

rather than general regulation of the

details of a particular business’s

operation.138 While a municipality

providing strong evidence of the adverse

health impacts of local food deserts and

the ready availability of cheap, energy

dense food in residential areas may be

able to impose conditions on certain

businesses through its zoning code, there

exists some unfortunate, though not

insurmountable, legal precedent that

requires careful consideration.

It is well settled that municipalities in New

York may regulate the location of

businesses that negatively impact the

surrounding community.139 Municipalities

may also regulate certain aspects of a

business enterprise occupying particular

land, so long as there is clear evidence

that such regulations are intended to

ameliorate the impacts those particular

types of businesses have on the

surrounding properties (e.g., limits on the



hours of operation).140 However, courts

have overturned zoning regulations that

apply to a particular type of business

based on general policy considerations as

exceeding the zoning authority (even if the

police power would permit similar

regulation outside of zoning laws).141

Specifically, the courts have found these

and similar zoning regulations concern the

person occupying the land, rather than the

use of the land.142 Thus, while a zoning

amendment like the model, which

regulates the location of certain

businesses, falls within municipal zoning

authority, a zoning law that conditioned

approval of a new corner store on the

owner’s agreement to stock certain staple

food items (e.g., similar to those

conditions included in the model licensing

ordinance) may be found to exceed the

scope of that authority.143 Thus,

communities attempting to regulate

business through zoning law must make

sure the law addresses the use of land.

As a general rule, the government can

regulate the use of private property 144 In

fact, property may be regulated to the

point of prohibiting an existing business

activity, so as it is for the public good.145

However, under both the United States

and New York State Constitutions, the

government may not take possession of

private property for public use without

fairly compensating the property owner.146

A regulation could conceivably result in a

physical property intrusion (e.g., a loss of

lawn due to widening road or intrusion on

a building’s roof due to government

required placement of public utility, such

as an antennae/cable box). Alternately, in

certain circumstances a property owner

may retain complete possession of the

property, yet a regulation may be deemed

to so interfere with an owner’s use of it

that the government, through its

regulation, may be deemed to have

“taken” the property from the owner.

These are both referred to as a

“regulatory taking” and may entitle the

owner to government compensation for

the loss.147

A party challenging a law as a regulatory

taking must meet a high threshold to

overcome the “presumption of

constitutionality” of government

regulation.148 A property owner may allege

a regulation resulted in a “per se taking;”

that is, imposes either a physical invasion

of the property or eliminates all value to

the property.149 In lieu of a physical

intrusion or a complete deprivation of

property value, an owner may instead

claim the regulation has diminished the

property value, therefore “taking” some of

the property to which the owner is entitled

to compensation. In the latter case, a

court may balance the government

interest that is furthered by the law in

relation to the interference with the private

property owner’s harm to determine

whether a regulatory taking exists (and

thus compensation is required).

A small food retailer may argue that the

model licensing ordinance or zoning

amendment results in a per se taking

based on a physical invasion of his

property (by requiring a certain space be

set aside to stock staple food products) or

a reduction in the value of his property.

Such a challenge is unlikely to succeed.

Neither model requires a physical

intrusion into the retailer’s property. To

determine whether a regulation

constitutes a physical invasion a court will



evaluate the nature of the intrusion. For

example, if a regulation forces an owner

to submit to third party intrusion (the

intrusion of someone other than the

government or the owner himself) or use

his property in a way that he did not

intend, it may constitute a physical

invasion.150 Under the model licensing

ordinance, the government would regulate

the manner in which an existing business

operates. Under the model zoning

amendment, the government may

regulate the use of land by an existing

business. While there is a “space”

requirement for the stocking of staple

foods, there is no physical invasion by the

government into the store; nor is the

retailer being forced to enter a business

she did not intend. It is no different from

other regulations of business or land, such

as building codes, sanitation rules,

parking requirements or storage

restrictions.151 Thus, the model licensing

ordinance is unlikely to constitute a taking

based on physical invasion.

A small food retailer may alternately argue

that the model licensing ordinance or

zoning amendment constitutes a taking

based on a reduction in the value of his

property. To succeed, a retailer must

demonstrate that the licensing ordinance

or zoning amendment results in the

elimination of all property value;—in other

words, she must show the regulation

deprives her of the use of her property for

any purpose.152 The licensing ordinance

causes no such deprivation as it merely

requires a small change in business

activity.

In the case of the model zoning

amendment, the determination would

largely rest on the treatment of existing

businesses at the time the amendment is

adopted. A zoning change that prohibits

existing businesses from altogether

continuing its operation may require

compensation to the business owner or

else constitute an unlawful taking.

However, a municipality can ensure that

continuing use is appropriately limited (to

realize the public health benefits intended

by the zoning change) and avoid a

successful taking challenge by

recognizing the existing use as a legal

nonconforming use.

A legal nonconforming use is one which

legally existed prior to a change in the

zoning law that now prohibits the use.

Municipalities may allow existing

businesses to continue operating in

violation of a new ordinance, and place

conditions on that continued use.153 For

example, nonconforming use is generally

not allowed to continue if there is an

expansion or significant alteration of the

building (other than regular maintenance).

Additionally, if the nonconforming use is

abandoned for a period of time, the

business may not be allowed to resume

without obtaining a permit from the

municipality.

Even where a regulation or law does not

result in a physical invasion or deprivation

of all economically beneficial use an

owner may still bring a regulatory takings

claim.154 Specifically, the owner of a small

grocer may challenge a law based on the

model licensing ordinance as “going too

far” in forcing her to bear a burden that

should actually be borne by the public.155

To evaluate this argument, a court would

use a balancing test and weigh the extent

of the “intrusion” on the private property

interests against the government interest



served by the regulation.156 A municipality

should be able to demonstrate that the

government interest served by the policy

food stocking requirements outweighs the

limited intrusion the policy imposes on an

individual store owner. Specifically, there

is limited intrusion as the owner is still

able to use the property as intended (retail

food outlet). The government interest is

improving public health by increasing

access to a range of healthful and

nutritious foods in areas most burdened

by obesity and its associated chronic

diseases. When balanced against the

intrusion on the small retailer to devote a

small portion of her inventory to healthy

food, the government interest should

prevail.

Under the model zoning amendment, a

municipality may choose to impose new

requirements on land used by existing

retailers within a reasonable period of

time. The law may specify a timeline for

the termination of nonconforming uses—a

process referred to as amortization. Since

the general policy of zoning is to establish

a plan for the overall development within a

community, existing uses that do not

conform to the zoning code are intended

to be temporary.157 Under amortization, a

municipality would allow a nonconforming

use to continue for a “reasonable period”

of time in order to allow the property

owner to recoup any investment he or she

has made in the property, but such use

would be prohibited at the end of that time

period. The “reasonable period” of time

must be determined on a case-by-case

basis and could be challenged by the

property owner if she believes it is too

short a time as applied to her property.158

Therefore, municipalities wishing to

establish a timeline for the phase-out of

nonconforming uses should do so only

after examining the affected properties

and identifying a period of time that will be

reasonable for the owners to recoup their

investment or make necessary changes to

conform to the new requirements.

The Fourteenth Amendment of the U.S.

Constitution guarantees “that persons

similarly situated with respect to the

legitimate purpose of the law receive like

treatment.”159 Opponents of a retailer

licensing system might argue that the

ordinance arbitrarily (and unfairly) treats

small food retailers differently from

similarly situated larger food retailers by

exempting the latter from license

requirements.

Similar challenges have been

unsuccessful. In the case of Tops Market

v. County of Erie, supermarkets and

wholesalers challenged an Erie County,

New York law that required individual food

items to be marked with a price.160 The

law contained an exemption for smaller

“mom & pop” stores and non-chain

convenience stores, and the plaintiffs

charged that such an exemption violated

the equal protection rights of the larger

stores.161 The court disagreed and found

that the County had a rational reason for

distinguishing among the different stores;

specifically, that there was a greater need

for individual price tags in the larger

stores, which used laser scanning

equipment for products at checkout.162

Additionally, the court found that the costs

of complying with the law would be

burdensome to smaller retailers in a way it

was not for larger retailers.163 Thus the

classification of stores was reasonable

and rational and therefore complied with



the requirements of the equal protection

clause.164

Similarly, applying the model licensing

system to smaller retailers (to the

exclusion of larger ones) is rationally

related to a community’s desire to improve

health in areas where it is needed most. A

community can demonstrate that larger

food retailers in the community already

carry the healthier staple food items in

large quantities, and greater access to

these foods is beneficial to residents in

areas primarily served by smaller retailers

that typically do not stock these items.

Thus, a challenge based on equal

protection grounds has little merit.

It is important for communities to carefully

plan each aspect of the implementation

and enforcement of a food retailer

certification program or licensing system.

(Zoning requires some separate

considerations discussed in Appendix C.)

While each policy presents its own set of

considerations, they have shared features

for a community to address. For example,

the community must determine the (1)

agency or program that will be in charge

of implementing the program or licensing

system; (2) source of financial resources

to support the program; and (3)

enforcement scheme of the certification or

license requirements. This section

illustrates the considerations common to

both policies, and then addresses those

unique to each model policy.

There are several common implementation

considerations for a community seeking to

change the retail environment. The model

policies can be adopted or implemented by

a county, city, town or village.165 (In the

case of the voluntary retail certification

program, it may simply be that a

community organization decides to develop

and implement it, without the need for

government action.) If a governmental

entity is adopting the program, the proper

legislative or administrative procedure

must be followed (these procedures will

depend on the specific rules of the entity).

The governmental entity generally must

hold a public hearing before the law is

adopted. This provides the public with an

opportunity to comment on the proposed

law. This is also an opportunity for

advocates to provide research and data—

including local data—demonstrating the

importance of implementing the new

program to improve access to staple foods

and, in turn, improve public health. While

the concerns of retailers should not be

dismissed, advocates should try to keep

the focus on the law’s objective of

improving health and reducing the

incidence of chronic disease. Once the

public hearings have taken place and the

measure has been approved, there should

be a period of time, as specified in the law,

between enactment and enforcement of

the law.

The entity adopting a certification or

licensing policy must designate an

agency, department or organization to

implement and/or enforce the program. If

a locality already has an agency that

administers commonly held licenses—like

business licenses or police or fire



permits—that agency may already be

equipped to administer the new retailer

certifications or licenses. If not, the locality

or organization must ensure that the body

administering the program has funding

and adequate and knowledgeable staff.

The staff should include those with

experience in the retail environment and

the ability to build relationships with

retailers and make connections between

retailers and suppliers. This expertise may

come from a grocery consultant, like that

employed through the Minneapolis

Initiative discussed above,166 or through a

partnership with other interested

organizations and stakeholders.

Experienced staff is vital to a successful

program since the administering agency

or organization will be responsible for

laying the groundwork before retailers are

required to comply with the conditions of

the certification or license. Additionally,

once the program has been implemented,

retailers will need ongoing technical

assistance to develop procurement

opportunities (e.g., the right products at

the right price),167 obtain training in food

handling and storage,168 and learn how

best to market the new products. The

administering agency will also be

responsible for public outreach and

community education about the program,

availability of staple food items in new

stores and the health benefits of choosing

the more nutritious options.

The administering agency or organization

should begin by assessing community

needs to adjust the requirements of the

model to achieve the best results. This will

include the identification of underserved

areas and the best way to improve access

to healthy foods in those areas. Useful

resources for this assessment are: (1)

CDC’s Healthier Food Retail assessment

guide;169 (2) U.S. Census data; (3) The

U.S. Department of Agriculture’s (USDA)

Food Environment Atlas;170 and (4) the

USDA’s Food Access Research Atlas.171

It is imperative that the administering

agency assist retailers to identify and

establish relationships with affordable

suppliers so products remain affordable

for the community at retail. Small food

retailers might not have existing

relationships with wholesalers and

distribution networks. Even if they do, they

are unlikely to wield the purchasing power

of larger supermarkets or grocery stores

that purchase supplies in large volumes

and obtain bulk discounts.172 If a retailer

purchases the new inventory at retail, the

retail markup may make the staples foods

too expensive for community members.173

The administering agency should identify

appropriate suppliers of affordable

products or assist retailers to form

purchasing clubs to increase buying

power and gain access to existing

wholesaler networks.174 The administering

agency may also coordinate “distribution

hubs” where produce is dropped off for

pickup or distribution to reduce

transportation costs.175

The administering agency will be

responsible for community outreach and

education. For either model policy to be

successful, residents must be aware of,

and actually purchase, the new products

from their corner stores. Residents may

be surveyed prior to implementation of the

program to determine the foods they

would be most likely to purchase.176 After

implementation, the new products should

be publicized and highlighted, through

marketing materials, 177 cooking classes,

recipes or other activities. Additionally, if



the retailers are required to accept food

benefits like SNAP and WIC, agencies

working with beneficiaries should be

alerted to the new stores carrying

products eligible for purchase.178

While licensing fees should cover the

costs of administering a licensing

program, funding may be necessary for

startup costs. Funding will certainly be

necessary for a voluntary certification

program to pay for staff, marketing and

education materials and incentives,

among other things. Communities may

apply for funding from a variety of

sources—state and federal government,

non-profit organizations that support

healthy food retailer initiatives. Appendix

H contains a partial list of potential

resources and organizations that provide

funding or help communities identify

funding opportunities for their program.

Enforcement considerations unique to the

voluntary certification program that a

community will need to address include

obtaining adequate financial resources

(e.g. for staffing, outreach, and incentives)

and developing the parameters of the

program specific to the community needs,

including a written agreement between

participating retailers and the program.

A certification program should include a

standard written agreement that clearly

identifies the goals of the program and the

responsibilities of both program staff and

the retailer (such as required changes to

the store environment, incentives and

availability of technical assistance). This

agreement can take the form of a simple

memorandum of understanding (examples

of which are provided in Appendix A2), or

a more detailed and legally enforceable

agreement (e.g., if significant financial

incentives or equipment are provided).

Further, the agreement should outline the

consequences for each party for early

termination of the agreement or for failure

to comply with the agreement (e.g.,

change in store ownership). This can

include providing for reimbursement of

funds and the return of equipment or

program materials.179

A licensing system by its nature includes

strong mechanisms for enforcement of its

restrictions and other ancillary laws.

Licensing fees should be set at a level

adequate to pay for the administration and

enforcement of the licensing

requirements, including periodic



inspections to ensure compliance and

education of enforcing agency staff.

(Appendix G contains an example of a

compliance check sheet used in

monitoring compliance with a retail

program.) To conserve resources and

reduce additional costs, consider whether

the enforcement agency can collaborate

with other agencies or combine the food

retail license inspections with other

mandatory inspections.

The high rates of New Yorkers living with

overweight and obesity are a serious public

health issue. Communities in New York

may reduce these rates by implementing

policy changes that encourage a healthy

diet and physical activity. Research

suggests that access to healthy food may

play a role in a community’s obesity and

overweight rates. Additionally, communities

across the country have begun working

with local retailers and have seen

improvements in their local food

environment, including increases in

nutritious options that community members

take advantage of.

In sum, communities in New York have

compelling reasons to work with local

retailers to increase the availability of

healthy foods. The three model policies

in this report may provide a framework

for a community’s policy change efforts

to combat obesity and overweight.



1 BEHAVIORAL RISK FACTOR SURVEILLANCE SYSTEM, OVERWEIGHT AND OBESITY (BMI)-2012, CENTER FOR

DISEASE CONTROL AND PREVENTION, http://apps.nccd.cdc.gov/brfss/list.asp?cat=OB&yr=2012&qkey=8261&state=NY (last visited June 4, 2014). 2 CTR. FOR DISEASE CONTROL AND PREV., OVERWEIGHT AND OBESITY: CAUSES AND CONSEQUENCES, http://www.cdc.gov/obesity/adult/causes/index.html (last visited June 7, 2013). 3 Id. 4 Id. 5 ATL. CTR. FOR HEALTH STATISTICS, CTR. FOR DISEASE CONTROL AND PREV., FASTSTATS:OBESITY ANDOVERWEIGHT, HTTP://WWW.CDC.GOV/NCHS/FASTATS/OVERWT.HTM, (LAST

VISITED JUNE 7, 2013). [hereinafter FASTSTATS:OBESITY AND OVERWEIGHT] (citing F.M. Biro & M. Wien, Childhood obesity and adult morbidities. 91 (5) AM. J. CLIN. NUTR.1499S—1505S (May 2010)). 6 Id. 7 THE FOOD TRUST & THE ROBERT WOOD JOHNSON FOUNDATION, HARNESSING THE POWER OF

SUPERMARKETS TO HELP REVERSE CHILDHOOD OBESITY, 2 (2011) (citing Christina Bethell et al, National, State and Local Disparities in Childhood Obesity, 29(3) HEALTH AFFAIRS 354 (2010)), available at http://content.healthaffairs.org/content/29/3/347.full.pdf+html (“As in 2003, rates of overweight and obesity were greatest among poor, Black, Hispanic, and publicly insured children.”). 8 CYNTHIA L. OGDEN, ET AL., NCHS DATA BRIEF NO. 51, OBESITY AND SOCIOECONOMIC STATUS IN

CHILDREN AND ADOLESCENTS: UNITED STATES, 2005-2008, NATL. CTR. FOR HEALTH STATISTICS, CTR. FOR DISEASE CONTROL AND PREV. 2 (2010), available at http://www.cdc.gov/nchs/data/databriefs/db51.pdf. 9 Id. 10 CTR. FOR DISEASE CONTROL AND PREV., OVERWEIGHT AND OBESITY: DATA and STATISTICS, http://www.cdc.gov/obesity/data/childhood.html (last visited June 7, 2013) (summarizing a study of compiled data from the National Health and Nutrition Examination Survey (NHANES) by CYNTHIA

OGDEN ET AL., , PREVALENCE OF OBESITY AMONG CHILDREN AND ADOLESCENTS: UNITED STATES, TRENDS

1963-65 THROUGH 2007-2008, CTRS. FOR DISEASE CONTROL AND PREV. (2010), available at http://www.cdc.gov/nchs/data/hestat/obesity_child_07_08/obesity_child_07_08.pdf)). 11 Id. 12 This is based on educational and economic disparities. For example, obesity is more prevalent among non-Hispanic black adults, adults with less than a college education, and adults who live in a household where the annual income is less than $15,000. See KATHLEEN WALES & IAN BRISSETTE, BUREAU OF CHRONIC DISEASE EVALUATION AND RESEARCH, ADULT OVERWEIGHT AND OBESITY IN NEW

YORK STATE, 2000-2010, at 2 (2011), available at http://www.health.ny.gov/prevention/obesity/statistics_and_impact/docs/2000-2010_adult_obesity.pdf. 13 BEHAVIORAL RISK FACTOR SURVEILLANCE SYSTEM NEW YORK-2-12. CENTER FOR DISEASE CONTROL

AND PREVENTION, HTTP://APPS.NCCD.CDC.GOV/BRFSS/DISPLAY.ASP?CAT=OB&YR=2012&QKEY=8261&STATE=NY (last visited June 3, 2014). 14 MORBIDITY AND MORTALITY WEEKLY REPORT, YOUTH RISK BEHAVIOR SURVEILLANCE- UNITED STATES, 2011, CENTER FOR DISEASE CONTROL AND PREVENTION 150 (2012) available at http://www.cdc.gov/mmwr/pdf/ss/ss6104.pdf. In New York City, 11.6 percent of high school students were considered obese, and another 15.5 percent were considered overweight. Id. at 151. 15 KATHLEEN WALES & IAN BRISSETTE, BUREAU OF CHRONIC DISEASE EVALUATION AND RESEARCH, ADULT

OVERWEIGHT AND OBESITY IN NEW YORK STATE, 2000-2010, at 6 (2011), available at http://www.health.ny.gov/prevention/obesity/statistics_and_impact/docs/2000-2010_adult_obesity.pdf. 16 OFFICE OF THE STATE COMPTROLLER, SOARING HEALTH CARE COSTS HIGHLIGHT NEED TO ADDRESS

CHILDHOOD OBESITY, 1 (2012), available at http://www.osc.state.ny.us/reports/obesity_and_child_obesity_10_23_12.pdf (adjusting the price from 2009 dollars to 2011 dollars based on the Consumer Price Index for medical care costs).

http://apps.nccd.cdc.gov/brfss/list.asp?cat=OB&yr=2012&qkey=8261&state=NY

http://www.cdc.gov/obesity/adult/causes/index.html

http://content.healthaffairs.org/content/29/3/347.full.pdf+html

http://www.cdc.gov/nchs/data/databriefs/db51.pdf

http://www.cdc.gov/obesity/data/childhood.html

http://www.cdc.gov/nchs/data/hestat/obesity_child_07_08/obesity_child_07_08.pdf

http://www.health.ny.gov/prevention/obesity/statistics_and_impact/docs/2000-2010_adult_obesity.pdf

http://www.cdc.gov/mmwr/pdf/ss/ss6104.pdf


http://www.osc.state.ny.us/reports/obesity_and_child_obesity_10_23_12.pdf



17 Id. 18 Id. 19 Id. at 6. 20 Kimberly Morland, et al., Supermarkets, Other Food Stores, and Obesity The Atherosclerosis Risk in Communities Study, 30(4) AM. J. OF PREV. MED. 333, 333 (2006). 21 NATIONAL CTR. FOR CHRONIC DISEASE PREV. AND HEALTH PROMOTION, CTR. FOR DISEASE CONTROL AND PREV., OBESITY: HALTING THE EPIDEMIC BY MAKING HEALTH EASIER, AT A GLANCE 2011, http://www.cdc.gov/chronicdisease/resources/publications/AAG/obesity.htm (last visited June 7, 2013) [hereinafter HALTING THE EPIDEMIC]. 22 CTR. FOR DISEASE CONTROL AND PREV., CDC VITAL SIGNS: ADULT OBESITY (August 2010), http://www.cdc.gov/VitalSigns/AdultObesity/index.html (last visited June 7, 2013). 23 HALTING THE EPIDEMIC, supra note 21. 24 HALTING THE EPIDEMIC, supra note 21. 25 HALTING THE EPIDEMIC, supra note 21 26 FOOD RESEARCH AND ACTION CENTER, FOOD INSECURITY AND OBESITY: UNDERSTANDING THE

CONNECTIONS, 2 (2011), available at http://frac.org/pdf/frac_brief_understanding_the_connections.pdf. 27 CTR. FOR DISEASE CONTROL AND PREV., A LOOK INSIDE FOOD DESERTS, http://www.cdc.gov/Features/FoodDeserts/ (last visited June 10, 2013). 28Elizabeth Whalen & Michael Seserman, Looking for an Oasis in a Food Desert: Low Income New Yorkers Lack Access to Healthy Food, 4 (2011), available at http://www.cancer.org/acs/groups/content/@eastern/documents/webcontent/acspc-031472.pdf (“It is estimated that 75% of food desert tracts in the continental U.S. are urban, while the remaining 25% are rural.”). 29 Id. at 3. 30 Judith Bell & Marion Standish, Building Healthy Communities Through Equitable Food Access, 5(3) COMMUNITY DEVELOPMENT INVESTMENT REVIEW: FEDERAL RESERVE BANK OF SAN FRANCISCO 75, 78 (2009). 31 Whalen, supra note 28, at 2. 32 But see May C. Wang, et al., Socioeonomic and food-related physical characteristics of the neighbourhood environment are associated with body mass index, 61 J. EPIDEMIOL COMMUNITY HEALTH, 491, 496 (2007), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2465719/pdf/491.pdf (demonstrating an association between high BMI and living close to supermarkets while not finding a relationship between higher BMI and proximity to small grocery stores and convenience stores.); Janne Boone-Heinonen et al., Fast Food Restaurants and Food Stores, Longitudinal Associations with Diet in Young to Middle-aged Adults: The CARDIA Study, 17(13) ARCH INTERN MED. 1162, 1165 (2011). (“In our longitudinal study neighborhood supermarket availability was generally unrelated to both adherence to fruit and vegetable recommendations and overall diet quality.”); Budzynska et al, A food desert in Detroit: associations with food shopping and eating behaviours, dietary intakes and obesity, 16 Public Health Nutrition 2114-2123 (2013) (“However, living in Detroit, a recognized food desert, was not associated with BMI once potential covariates were considered. These findings suggest that the relationship between obesity and area of residence is not explained simply by access to supermarkets but is influenced by other aspects such as sociodemographic factors and health status, which may confound or mediate the association.). 33 Lisa Powell et al., Associations Between Access to Food Stores and Adolescent Body Mass Index, 33 (4S) AM. J. PREV. MED. S301, S305 (2007). (“Each additional chain supermarket outlet per 10,000 capita was estimated to reduce CMI by 0.11 unites and to reduce the prevalence of overweight by 0.6 percentage points. BMI and overweight were statistically significantly higher in areas where there were more convenience stores; an additional convenience store per 10,000 capita was associated with 0.03 unit increase in BMI and a 0.15 percentage point increase in overweight.” This was reached controlling for individual and family characteristics, and holding neighborhood per capital income, restaurant availability, and food prices constant.). 34 Id. at S306. 35 Nicole I. Larson et al., Neighborhood Environments: Disparities in Access to Healthy Foods in the U.S., 36 AM. J. PREV. MED. 74, 74 (2009). 36 Id. at 75. 37 Id. at 75. 38 Id. at 76.

http://www.cdc.gov/chronicdisease/resources/publications/AAG/obesity.htm

http://www.cdc.gov/VitalSigns/AdultObesity/index.html

http://frac.org/pdf/frac_brief_understanding_the_connections.pdf

http://www.cdc.gov/Features/FoodDeserts/

http://www.cancer.org/acs/groups/content/@eastern/documents/webcontent/acspc-031472.pdf

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2465719/pdf/491.pdf



39 Id. at 77. 40 Kimberly Morland, et al., Supermarkets, Other Food Stores, and Obesity The Atherosclerosis Risk in Communities Study, 30(4) AM. J. OF PREV. MED. 333, 334, 338(2006) (analyzing atherosclerosis risk in communities’ participants overweight and obesity rates compared to the presence of supermarkets, small food stores, and conveniences stores.); but see Aiko Hattori, et al, Neighborhood Food Outlets, Diet, and Obesity Among California Adults, 2007 and 2009, 10 PREV. CHRONIC DIS. (2013) (finding that access to food within a walkable distance did not correlate with BMI of residents and found some evidence associating food environment for larger non-walkable areas with BMI.). 41Morland, supra note 40, at 335. 42 Morland, supra note 40, at 336. 43 Morland, supra note 40, at 336. 44 CALIFORNIA CTR. FOR PUB.HEALTH ADVOCACY, UCLA CTR. FOR HEALTH POLICY RESEARCH & POLICYLINK, DESIGNED FOR DISEASE: THE LINK BETWEEN LOCAL FOOD ENVIRONMENTS AND OBESITY AND DIABETES 2 (2008), available at http://www.policylink.org/atf/cf/%7B97c6d565-bb43-406d-a6d5-eca3bbf35af0%7D/DESIGNEDFORDISEASE_FINAL.PDF. 45 Id. 46 Sanae Inagami, et al., You Are Where You Shop: Grocery Store Locations, Weight, and Neighborhoods, 31(1) AM. J. PREV. MED., 10, 15 (2006). 47 Bodor et al, Neighborhood fruit and vegetable availability and consumption: the role of small food stores in an urban environment, 11 PUBLIC HEALTH NUTRITION 413-420 (2007) available at http://prc.tulane.edu/uploads/Neighbourhood%20F%20and%20V%20availability%20and%20consumption_Role%20of%20small%20food%20stores%20in%20urban%20env.pdf (studying in-store food availability in four contiguous census tracks in New Orleans.). 48 Id. at 414. 49 Id. at 416-417. 50 Id. 51 THE FOOD TRUST FOR THE HEALTHY CORNER STORES NETWORK, HEALTHY CORNER STORES ISSUE BRIEF, Winter 2012, at 1, available at http://thefoodtrust.org/uploads/media_items/winter2012issuebrief.original.pdf. 52 POLICYLINK, WHAT IS IT? 1, http://www.policylink.org/atf/cf/%7B97c6d565-bb43-406d-a6d5-eca3bbf35af0%7D/access%20to%20healthy%20food.PDF (last visited June 10, 2013). 53 Id. 54 DIV. OF NUTRITION, PHYSICAL ACTIVITY, AND OBESITY , NATIONAL CTR. FOR CHRONIC DISEASE PREV. AND

HEALTH PROMOTION, THE CDC GUIDE TO STRATEGIES TO INCREASE THE CONSUMPTION OF FRUITS AND

VEGETABLES, 9 (2011), available at http://www.cdc.gov/obesity/downloads/FandV_2011_WEB_TAG508.pdf.

55 U.S. DEPT. OF HEALTH AND HUMAN SERVICES, OBAMA ADMINISTRATION DETAILS HEALTHY FOOD FINANCING

INITIATIVE, (2010), http://www.hhs.gov/news/press/2010pres/02/20100219a.html (last visited July 15, 2013). 56 OFFICE OF CMTY. SERVICES, ADMIN. FOR CHILDREN & FAMILIES, HEALTHY FOOD FINANCING INITIATIVE, http://www.acf.hhs.gov/programs/ocs/resource/healthy-food-financing-initiative-0 (last visited June 10, 2013). 57 Id. 58 CMTY. DEV. FINANCIAL INSTITUTIONS FUND, UNITED STATES DEPARTMENT OF THE TREASURY, NMTC

PROGRAM ALLOCATEES STATES SERVED, http://www.cdfifund.gov/impact_we_make/nmtc_state_reports.asp (last visited June 10, 2013). 59 See LIIF, NEW YORK HEALTHY FOOD & HEALTHY COMMUNITIES FUND, http://www.liifund.org/products/community-capital/capital-for-healthy-food/new-york-healthy-food-healthy-communities-fund/ (last visited June 10, 2013). 60 PUBLIC HEALTH, COMMISSIONER’S OFFICE, COMMUNITY FOOD ACCESS AND AFFORDABILITY, http://www.phila.gov/health/Commissioner/FoodAccess.html (last visited June 10, 2013). 61 Id. 62 THE FOOD TRUST, WHO WE ARE, http://thefoodtrust.org/about (last visited June 19th 2013).

http://www.policylink.org/atf/cf/%7B97c6d565-bb43-406d-a6d5-eca3bbf35af0%7D/DESIGNEDFORDISEASE_FINAL.PDF


http://prc.tulane.edu/uploads/Neighbourhood%20F%20and%20V%20availability%20and%20consumption_Role%20of%20small%20food%20stores%20in%20urban%20env.pdf

http://prc.tulane.edu/uploads/Neighbourhood%20F%20and%20V%20availability%20and%20consumption_Role%20of%20small%20food%20stores%20in%20urban%20env.pdf

http://thefoodtrust.org/uploads/media_items/winter2012issuebrief.original.pdf

http://www.policylink.org/atf/cf/%7B97c6d565-bb43-406d-a6d5-eca3bbf35af0%7D/access%20to%20healthy%20food.PDF

http://www.policylink.org/atf/cf/%7B97c6d565-bb43-406d-a6d5-eca3bbf35af0%7D/access%20to%20healthy%20food.PDF

http://www.cdc.gov/obesity/downloads/FandV_2011_WEB_TAG508.pdf

http://www.hhs.gov/news/press/2010pres/02/20100219a.html

http://www.acf.hhs.gov/programs/ocs/resource/healthy-food-financing-initiative-0

http://www.cdfifund.gov/impact_we_make/nmtc_state_reports.asp

http://www.liifund.org/products/community-capital/capital-for-healthy-food/new-york-healthy-food-healthy-communities-fund/


http://www.phila.gov/health/Commissioner/FoodAccess.html

http://thefoodtrust.org/about%20(last



63 THE FOOD TRUST, ET AL., PHILADELPHIA’S HEALTHY CORNER STORE INITIATIVE 2010-2012 at 3 (2012), available at http://www.foodfitphilly.org/FOODFITPHILLY/assets/File/HCSI_Y2report_FINAL%202012.pdf [hereinafter PHILADELPHIA’S HEALTHY CORNER STORE]. 64 Id. at 5. 65 Id. at 4. 66 Id. at 6. 67 Id. at app. B. 68 Id. 69 Id. at 3. 70 Id. at 10. 71 Id. 72 Id. at 3. 73 Id. 74MINNEAPOLIS DEPT. OF HEALTH AND FAMILY SUPPORT, MINNEAPOLIS HEALTHY CORNER STORE PROGRAM: MAKING PRODUCE MORE VISIBLE, AFFORDABLE AND ATTRACTIVE, 4 (2012), available at http://www.health.state.mn.us/divs/oshii/docs/Mpls_Healthy_Corner_Store.pdf [hereinafter MINNEAPOLIS

HEALTHY CORNER STORE PROGRAM]. 75 Id. at 5; Tatiana Andreyeva et al., Food retailer practices, attitudes and beliefs about the supply of health foods, 14(6) PUB. HEALTH NUTR. 1024, 1025 (2011). (“Since October 2009, WIC participants began to receive vouchers for new food packages including fruit and vegetables, whole grains, and other nutritious products.”). 76 Aliyah Ali, The Minneapolis Healthy Corner Store Program, 23 (October 20, 2010) (unpublished presentation at the 14th Annual CFSC: Food Justice Culture) (on file with Minnesota Vision), available at http://www.slideshare.net/cfsc/nolapresentation. 77MINNEAPOLIS HEALTHY CORNER STORE PROGRAM, supra note 70, at 3. 78 MINNEAPOLIS HEALTH DEP’T, HEALTHY CORNER STORES, http://www.minneapolismn.gov/health/living/cornerstores (last visited June 10, 2013). 79MINNEAPOLIS HEALTHY CORNER STORE PROGRAM, supra note 70, at 5. 80 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM, supra note 70, at 5. 81 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM, supra note 70, at 12. 82 CITY OF ROCHESTER, N.Y. LOCAL LAW §120-208. 83 CITY OF ROCHESTER, N.Y. LOCAL LAW §120-208. 84 CITY OF ROCHESTER, N.Y. LOCAL LAW §120-208. 85 See Memorandum from Mayor Thomas S. Richards to Rochester City Council, Amending the City Code-Chapter 120 Zoning Code and Chapter 90 Property Code (August 24, 2012). 86 CITY OF ROCHESTER, N.Y. LOCAL LAW §120-146. 87 CITY OF ROCHESTER, N.Y. LOCAL LAW §120-208. 88 CITY OF ROCHESTER, N.Y. LOCAL LAW §120. 89 FRESH: FOOD RETAIL EXPANSION TO SUPPORT HEALTH, the program’s website is available at http://www.nyc.gov/html/misc/html/2009/fresh.shtml. 90 Food Retail Expansion to Support Health, NYC.GOV, http://www.nyc.gov/html/misc/html/2009/fresh.shtml (last visited June 7, 2013). 91 Id. 92 Id. 93 Id. 94 Id. 95 Id. 96 NYCEDC, NYCIDA APPROVES ASSISTANCE FOR NEW FINE FARE SUPERMARKET IN THE BRONX, http://www.nycedc.com/press-release/nycida-approves-assistance-new-fine-fare-supermarket-bronx (last visited June 7, 2013). 97 THE CITY OF NEW YORK, NEW YORK CITY FOOD POLICY: 2013 FOOD METRICS REPORT, 15 (2013) http://www.nyc.gov/html/nycfood/downloads/pdf/ll52-food-metrics-report-2013.pdf 98 Id. 99 New York Healthy Food & Healthy Communities Fund, NEW YORK STATE’S EMPIRE STATE DEVELOPMENT, http://esd.ny.gov/BusinessPrograms/HealthyFoodHealthyCommunities.html (last visited June 7, 2013).

http://www.foodfitphilly.org/FOODFITPHILLY/assets/File/HCSI_Y2report_FINAL%202012.pdf

http://www.health.state.mn.us/divs/oshii/docs/Mpls_Healthy_Corner_Store.pdf

http://www.slideshare.net/cfsc/nolapresentation

http://www.minneapolismn.gov/health/living/cornerstores

http://www.nyc.gov/html/misc/html/2009/fresh.shtml

http://www.nyc.gov/html/misc/html/2009/fresh.shtml

http://www.nycedc.com/press-release/nycida-approves-assistance-new-fine-fare-supermarket-bronx

http://esd.ny.gov/BusinessPrograms/HealthyFoodHealthyCommunities.html



100 New York Healthy Food and Healthy Communities Fund, LIIF: LOW INCOME INVESTMENT FUND, http://www.liifund.org/products/community-capital/capital-for-healthy-food/new-york-healthy-food-healthy-communities-fund/ (last visited June 10, 2013) (defining underserved areas as those satisfying both criteria: “low or moderate income census tract (or a food market site with a customer base of 50 percent or more living in a low-income census tract)” or a “census tract with below average food market density.”). 101 NEW YORK HEALTHY FOOD AND HEALTHY COMMUNITIES FUND, FUND OVERVIEW 1 (2012) available at http://www.liifund.org/wp-content/uploads/2012/01/NY-HFHC-Overview-Terms_2012-01-17.pdf. 102 NEW YORK HEALTHY FOOD AND HEALTHY COMMUNITIES FUND, PROGRAM GUIDELINES 1 (2012) available at http://www.liifund.org/wp-content/uploads/2012/01/NY-HFHC-Program-Guidelines_2012-01-17.pdf. 103 Id. at 2 (A market that takes financing does not have to accept WIC benefits if it is a “farmers’ market, produce market, mobile market, or other food market that utilizes no less than 70 percent of its retail floor area (or retail goods, for mobile markets) for the sale of agricultural food products.”). 104 Foodtown, LIIF: LOW INCOME INVESTMENT FUND, http://www.liifund.org/projects/healthy-food-markets/foodtown/ (last visited June 7, 2013). 105 Id. 106 Id. 107 About GrowNYC, GROWNYC, http://www.grownyc.org/about (last visited June 7, 2013). 108 Greenmarket Co., GROWNYC, http://www.grownyc.org/greenmarketco (last visited June 7, 2013). 109 Id. 110 Healthy Retail, GROWNYC, http://www.grownyc.org/greenmarketco/healthyretail (last visited June 7, 2013). 111 Id. 112 Id. 113 Larson, supra note 35, at 75. 114 EVA RINGSTROM & BRANDON BORN, UW NORTHWEST CENTER FOR LIVABLE COMMUNITIES, FOOD ACCESS

POLICY AND PLANNING GUIDE 5 (2011) available at http://www.nyc.gov/html/ddc/downloads/pdf/ActiveDesignWebinar/King%20County%20Food%20Access%20Guide.pdf. 115 See, e.g., CHRISTINE FRY ET AL., CHANGELAB SOLUTIONS, HEALTH ON THE SHELF: A GUIDE TO HEALTHY

SMALL FOOD RETAILER CERTIFICATION PROGRAMS 5 (2013) available at http://changelabsolutions.org/sites/default/files/Health_on_the_Shelf_FINAL_20130322-web_0.pdf. 116 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 59, at 13. 117CHANGELAB SOLUTIONS, LICENSING FOR LETTUCE: A GUIDE TO THE MODEL LICENSING ORDINANCE FOR

HEALTHY FOOD RETAILERS 8 (2013) available at http://changelabsolutions.org/sites/default/files/Licensing_for_Lettuce_FINAL_20130212_0.pdf [hereinafter LICENSING FOR LETTUCE]. 118 See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S.365, 387 (1926) (finding that due to increased development of urban land, restrictions on land use are necessary; the validity of such restrictions depends on local conditions; and separating industrial uses from residential uses is clearly in the public interest). 119 Palmdale Zoning Ordinance, Ch. 9, Art. 92, § 92.15. 120 See N.Y. Const., art. IX, § 2(c) (granting local governments in New York State the authority to regulate with respect to the “safety, health and well-being” of their residents, so long as local laws do not conflict with state laws). 121 Nebbia v. New York, 291 U.S. 502, 524 (1934). 122 N.Y. CONST. art. 9 §2(c). 123 Woodbury Heights Estates Water Co., Inc. v. Village of Woodbury, 943 N.Y.S.2d 385, 389 (N.Y. Sup. 2012). 124 See N.Y. AGRIC. & MKTS. § 251-z et. seq. (McKinney 2009); Description of Food Processing, NEW

YORK STATE: DEP’T OF AGRIC. & MARKETS, http://www.agriculture.ny.gov/FS/general/foodprep.html (last visited June 7, 2013). 125 N.Y. AGRIC & MARKETS §500 (McKinney 2009). 126 See N.Y. COMP. CODES R. & REGS. tit. 1, §272 (2013).



http://www.liifund.org/wp-content/uploads/2012/01/NY-HFHC-Overview-Terms_2012-01-17.pdf

http://www.liifund.org/wp-content/uploads/2012/01/NY-HFHC-Program-Guidelines_2012-01-17.pdf

http://www.liifund.org/projects/healthy-food-markets/foodtown/

http://www.liifund.org/projects/healthy-food-markets/foodtown/

http://www.grownyc.org/about

http://www.grownyc.org/greenmarketco

http://www.grownyc.org/greenmarketco/healthyretail

http://www.nyc.gov/html/ddc/downloads/pdf/ActiveDesignWebinar/King%20County%20Food%20Access%20Guide.pdf

http://www.nyc.gov/html/ddc/downloads/pdf/ActiveDesignWebinar/King%20County%20Food%20Access%20Guide.pdf

http://changelabsolutions.org/sites/default/files/Health_on_the_Shelf_FINAL_20130322-web_0.pdf

http://changelabsolutions.org/sites/default/files/Licensing_for_Lettuce_FINAL_20130212_0.pdf

http://www.agriculture.ny.gov/FS/general/foodprep.html



127 See Suffolk County Builders Ass’n v. County of Suffolk, 389 N.E.2d 133 (N.Y. 1979); ATM One, L.L.C. v. Incorporated Village of Freeport, 714 N.Y.S.2d 721 (N.Y. App. Div. 2000); N.Y. Telephone Co. v. City of Amsterdam, 613 N.Y.S.2d 993 (N.Y. App. Div. 1994); Torsoe Bros. Construction Corp. v. Bd. of Trustees of Monroe, 375 N.Y.S.2d 612 (N.Y. App. Div. 1975); Town of N. Hempstead v. Colonial Sand & Gravel Co., 178 N.Y.S.2d 579 (N.Y. Sup. Ct. 1958); Sperling v. Valentine, 28 N.Y.S.2d 788 (N.Y. Sup. Ct. 1941); Dugan Bros. of N. J. v. Dunnery, 269 N.Y.S. 844 (N.Y. Sup. Ct. 1933).

128 Suffolk County Builders Ass’n v. County of Suffolk, 389 N.E.2d 133, 134-137 (1979). 129Id. at 134-137. 130 Id. 131 Dugan Bros.of N.J. v. Dunnery, 269 N.Y.S. 844, 845 (N.Y. Sup. Ct. 1933). 132 Nitkin v. Adm’r of Health Servs. Admin. of City of N.Y., 91 Misc. 2d 478, 479 (N.Y. Sup. Ct. 1975). 133 Id. 134 ATM One, L.L.C. v. Incorporated Village of Freeport, 714 N.Y.S.2d 721, 722 (N.Y. App. Div. 2000). 135 N.Y. GEN. CITY LAW §§ 20(24), 20(25); N.Y. TOWN LAW §§ 261-285; N.Y. VILLAGE LAW, §§ 7-700 to 7-742. Counties have not been granted the power to adopt zoning regulations. While this zoning power is limited by the enabling statutes adopted by the New York State Legislature, those statutes include the local adoption of regulations “designed to promote the public health, safety and general welfare” and thus are sufficiently broad to include the regulation of businesses. N.Y. GEN. CITY LAW § 20(25). See also N.Y. TOWN LAW §261; N.Y. VILLAGE LAW § 7-700. 136 See, e.g., New York Town Law §263. 137 Connell v. Town of Granby, 12 A.D.2d 177, 178 (1961) (citing Village of Euclid v. Ambler Realty Col, 272 U.S. 365). 138 Sunrise Check Cashing v. Town of Hempstead, 20 N.Y.3d 481, 483 (2013) (“zoning is concerned with the use of land, not with the identity of the user); see also St. Onge v. Donovan, 71 N.Y.2d 507, 516 (1988) (holding that zoning boards may not impose conditions seeking to regulate the details of the operation of a business, rather than the use of the land on which the business is located); see also Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 427 (1989) (confirming that local governments cannot exceed the lawmaking authority granted by the state legislature). 139 Stringfellow’s of New York, Ltd. V. City of New York, 91 N.Y.2d 382, 397 (1998); see also, e.g., NYC Amended Zoning Resolution §32-01 (restricting adult commercial businesses to light industrial areas in order to control “secondary effects” of such businesses); Lafayette (California) Mun. Code §6-533 (restricting firearm dealers to commercial zones and requiring special permit after consideration of proximity to schools, other firearms dealers, liquor stores, etc.); Van Sicklen v. Browne, 15 Cal. App. 3d 122 (1971) (permissible for city to deny CUP for automobile service station in area in which several already existed). 140 Milt-Nik Land Corp. v. City of Yonkers, 24 A.D.3d 446, 449 (2005) (upholding zoning special permit requirement limiting restaurant hours of operation in consideration of adverse effects on neighboring residential properties, such as noise, traffic and parking problems). 141 Sunshine Check Cashing v. Town of Hempstead, 20 N.Y.3d 481, 485 (2013); Properties, Inc. v. Strada, 191 Misc.2d 746, 751-753 (2002) (upheld on appeal); People v. Courtesy Mobil, 3 MIsc.3d 11, 13 (2003). 142 Sunshine Check Cashing v. Town of Hempstead, 20 N.Y.3d 481, 485 (2013); 143 The courts striking zoning laws imposing restrictions on the operation of certain businesses appear to leave open the possibility of such zoning regulation if the municipality provides substantial empirical evidence that a business operating outside of the regulation would negatively impact the surrounding neighborhood. See Sunshine Check Cashing v. Town of Hempstead, 20 N.Y.3d 481, 485-486 (2013) (finding insufficient evidence that zoning restriction on particular type of business would negatively impact surrounding community); Louhal Properties, Inc. v. Strada, 191 Misc.2d 746, 751-753 (2002) (upheld on appeal)(finding that zoning restrictions on the operation of business might be upheld if restrictions substantially relate to the prevention of a significant impact on nearby properties or the community); Westbury Trombo, Inc. v. Board of Trustees of Village of Westbury, 307 A.D.2d 1043, 1044 (2003) (finding insufficient evidence that 24-hour business would have detrimental impact on health, safety, welfare or morals of the community); Texaco Refining & Marketing, Inc., v. Valente, 174 A.D.2d 674, 675 (1991) (finding zoning restriction on hours of operation were not supported by evidence that 24-hour operation would disturb local residents, but rather were based on generalized objections of community).



144 Penn. Coal Co. v. Mahon, 260 U.S. 393, 415(1922). 145 Penn. Central. Transp. Co. v. City of New York, 438 U.S. 104, 126-127 (1978). 146 U.S. CONST. amend. X; N.Y. Const. art. I § 7. 147 Penn. Coal Co. v. Mahon, 260 U.S. 393, 415(1922); Walton v. New York State Dept. Of Correctional Services, 13 N.Y. 3d 475, 489 (2009). 148 Dawson v. Higgins, 197 A.D.2d 127, 135-136 (1994). 149 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992); See also Friedenburg v. New York State Dept. of Environmental Conservation, 3 A.D. 3d 86 , 92 (2003) 150Seawall Associates v. City of New York, 74 N.Y.2d 92 (1989) (law required owners of commercial property to rehab and rent them as single room occupancy units); See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (law requiring property owners to submit to the installation of cable television facilities in apartment buildings comprised a taking of property). 151 As opposed to being analyzed as a permanent, physical occupation by the government. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 440 (1982) (“[s]o long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they (landlord regulations) will be analyzed under the multifactor inquiry generally applicable to non-possessory governmental activity.”). 152 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-6 (1992); see also Smith v. Town of Mendon, 822 N.E.2d 1214 (N.Y. 2004) (required conservation easement over property did not deprive landowner of all economic use of his property). 153 See generally 12 N.Y. JUR. 2D BUILDINGS § 333 (2011). 154 Gangemi v. City of New York, 827 N.Y.S.2d 498, 507 (2006) 155 See Penn. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (explaining that while property may be regulated, the regulation goes “too far” when it shifts a burden from one to another without compensation.). 156 See Friedenburg v. New York State Dept. of Environmental Conservation, 3 A.D. 3d 86 , 96 (2003) (stating that where a per se taking has not been found –meaning either a physical invasion or complete deprivation of economic use- then a court will look to the factors provided in Penn Central to determine whether a taking has occurred: (1) the economic impact of the regulation, (2) the extent to which the regulation has interfered with reasonable investment-backed expectations, and (3) the character of the governmental action.). 157 P.M.S. Assets, Ld. V. Zoning Bd. Of Appeals of Village of Pleasantville, 774 N.E.2d 204, 205 (2002);Toys R Us v. Silva, 89 N.Y.2d 411, 417 (1996). 158 “Reasonableness is determined by examining all the facts, including the length of the amortization period in relation to the investment and the nature of the use. The period of amortization will normally increase as the amount invested increases or if the amortization applies to a structure rather than a use.” Town of Islip v. Caviglia, 73 N.Y.2d 544, 561 (1989). In a challenge, landowner bears the burden of establishing that the loss suffered by amortization period is “so substantial that it outweighs the public benefit to be gained” by the zoning amendment. Village of Valatie v. Smith, 83 N.Y.2d 396, 400-401 (1994). 159 Walgreen Co. v. City & County of S. F., 110 Cal. Rptr. 3d 498, 504, 506 (Cal. Ct. App. 2010) (internal citations and quotation marks omitted). 160 Tops Mkts. v. County of Erie, 156 Misc.2d 49, 52 (N.Y. Sup Ct. 1992). 161 Id. at 55. 162 Id. at 56. 163 Id. 164 Id.; see also Wegman’s Food Markets, Inc. v. State of New York, 76 A.D.2d 95 (A.D.4d 1980). 165 N.Y. MUN. HOME RULE LAW § 10(1)(ii)(a)(12) (McKinney 2013) (“Every local government … shall have power to adopt and amend local laws … relating to … [t]he government, protection, order conduct, safety, health and well-being of persons therein. This provision shall include but not be limited to the power to adopt local laws providing for the regulation or licensing of occupations or business …”).



166 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM, supra note 70, at 4-5 (“MDHFS recognized that to effectively implement the program, it needed grocery and marketing expertise not typically found in public health professionals. MDHFS sought a grocery store consultant with energy, creativity, business-savvy and passion for creating a more equitable food system. After searching grocery trade organizations and local colleges and universities, MDFHS ultimately hired an operations manager from a local healthy foods co-op to consult on the project. The consultant’s role was to identify assets and enhancement strategies in each store and develop procurement opportunities for corner stores. She also provided direct guidance and support for store owners in storing and displaying produce.”). 167 Sarah Kliff, Will Philadelphia’s experiment in eradicating ‘food deserts’ work?, THE WASHINGTON POST

(June 8, 2012), http://www.washingtonpost.com/blogs/wonkblog/post/will-philadelphias-experiment-in-eradicating-food-deserts-work/2012/06/08/gJQAU9snNV_blog.html (last visited June 7, 2013) (“Philadelphia is trying to turn corner stores into greengrocers. For a small shop, it’s a risky business proposition. Vegetables have a limited shelf life, so a store owner must know how much will sell quickly — or watch profits rot away. He also lacks the buying power of large supermarkets and is often unable to meet the minimum orders required by the cheaper wholesalers that grocery stores use.”); See also WARREN ORTLAND, TOBACCO LAW CENTER, REDUCING COMMUNITY FOOD INSECURITY: A REVIEW OF OPTIONS, 4 (2008), (“Food prices in inner city neighborhood stores tend to be higher because a lack of economies of scale available to larger grocery stores. If the foods are made available, but priced too high when compared to cheaper, less healthy options the local consumer still may not purchase them.”). 168 WARREN ORTLAND, supra note 140, at 4 (noting that a stocking requirement is similar to an “unfunded mandate” where stores are placed with the financial burden of transitioning to be able to stock produce requirements and further need support for store modification, which has been estimated anywhere from 22,520 to 100,000 per store in assistance, equipment, and initial inventory. These costs are excessive for smaller stores to handle.). 169 CTR. FOR DISEASE CONTROL AND PREV, DIVISION OF NUTRITION, PHYSICAL ACTIVITY, AND OBESITY, HEALTHIER FOOD RETAIL: BEGINNING THE ASSESSMENT PROCESS IN YOUR STATE OR COMMUNITY, available at http://www.cdc.gov/obesity/downloads/hfrassessment.pdf. 170 Food Environment Atlas, U.S. DEP’T OF AGRIC.,, http://www.ers.usda.gov/data-products/food-environment-atlas/about-the-atlas.aspx#.Ua5KkdjLWul (last visited June 10, 2013). 171 Food Access Research Atlas, U.S. DEP’T OF AGRIC., http://www.ers.usda.gov/data-products/food-access-research-atlas.aspx#.UaYi09jLWuI (last visited June 10, 2013). 172 DESIGNING A STRONG AND HEALTHY NEW YORK: NEW YORK STATE’S OBESITY PREVENTION COALITION AND

POLICY CENTER, POLICY BRIEF: REGIONAL FOOD DISTRIBUTION CENTERS: LINKING COMMUNITIES TO HEALTHY

FOODS AND ECONOMIC DEVELOPMENT, 3 (2012) [hereinafter DESIGNING A STRONG AND HEALTHY NEW YORK] (“These small independent businesses (corner stores), which are often the main sources of food for low-income communities in rural and urban areas, have difficulty accessing current distribution networks. The networks are scaled for higher volumes of purchasing than smaller retailers can sustain.”). 173 Tatiana Andreyeva et al., Food retailer practices, attitudes and beliefs about the supply of healthy foods, 14(6) PUBLIC HEALTH NUTR. 1024, 1029 (2011) (“Suppliers have pervasive influence in the market, particularly through price setting, which was mentioned by many retailers. Supplier networks differ by product, and healthy products such as fruits and vegetables typically have fewer suppliers. Produce is usually procured by small retailers through self-supply from supermarkets and warehouse clubs, potentially leading to double retailer markup, poor food safety and increased spoilage due to multiple handling.”). 174 THE FOOD TRUST FOR THE HEALTHY CORNER STORES NETWORK, HEALTHY CORNER ISSUE BRIEF: WINTER

2012, 1 (2012) (“Additionally,… a group of owners can purchase larger quantities of produce to then divide among other store owners, thus allowing them to purchase in larger volumes at a lower cost.”). 175 Id.; see DESIGNING A STRONG AND HEALTHY NEW YORK, supra note 135. 176 Example of a customer survey on food items and general store impressions is in Appendix D. 177 See CHRISTINE FRY ET AL., CHANGELAB SOLUTIONS, HEALTH ON THE SHELF: A GUIDE TO HEALTHY SMALL

FOOD RETAILER CERTIFICATION PROGRAMS 58 (2013) available at http://changelabsolutions.org/sites/default/files/Health_on_the_Shelf_FINAL_20130322-web_0.pdf.

http://www.washingtonpost.com/blogs/wonkblog/post/will-philadelphias-experiment-in-eradicating-food-deserts-work/2012/06/08/gJQAU9snNV_blog.html

http://www.washingtonpost.com/blogs/wonkblog/post/will-philadelphias-experiment-in-eradicating-food-deserts-work/2012/06/08/gJQAU9snNV_blog.html

http://www.cdc.gov/obesity/downloads/hfrassessment.pdf

http://www.ers.usda.gov/data-products/food-environment-atlas/about-the-atlas.aspx#.Ua5KkdjLWul

http://www.ers.usda.gov/data-products/food-environment-atlas/about-the-atlas.aspx#.Ua5KkdjLWul

http://www.ers.usda.gov/data-products/food-access-research-atlas.aspx#.UaYi09jLWuI





178 Products eligible through WIC include breakfast cereal, fruit and vegetable juice (100%) unsweetened pasteurized fruit and/or vegetable juice), milk and dairy products, legumes, eggs, fruits and vegetables, canned fish, and infant formula. See U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERVICES, BENEFITS AND

SERVICES WIC FOOD PACKAGES-REGULATORY REQUIREMENTS FOR WIC-ELIGIBLE FOODS, http://www.fns.usda.gov/wic/benefitsandservices/foodpkgregs.HTM (last visited on May 7th 2013); SNAP benefits can purchase breads and cereal, fruits, vegetables, meats, fish, poultry, and dairy products. See U.S. DEP’T. OF AGRIC. FOOD & NUTRITION SERVICES, SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM: ELIGIBLE FOOD ITEMS, http://www.fns.usda.gov/snap/retailers/eligible.htm (last visited on May 7th 2013). 179For a model enforceable agreement see CHRISTINE FRY ET AL., supra note 4, at app. A.

http://www.fns.usda.gov/wic/benefitsandservices/foodpkgregs.HTM

http://www.fns.usda.gov/snap/retailers/eligible.htm






The Model Voluntary Certification Program is intended to provide a framework for communities

seeking to encourage small food retailers to offer more nutritious products. It describes incentives

that may be provided in exchange for these modifications at each level of certification, with the

more valuable incentives offered at higher levels of certification wherein broader store changes

are adopted. The model illustrates the steps a community may take to develop and implement a

voluntary certification program.

Any program will require a funding source to cover the costs of administering the program. These

costs might include staffing, incentives, monitoring compliance and evaluating the program.1

Identifying available funding first will inform the community of the scope of the final program.

Appendix G lists some resources that may be useful to this effort.

The program should include experienced staff to administer the program and provide ongoing

support to the participating retailers. Staff responsibilities will include: initial community evaluation;

identification of underserved areas, key retailers, and appropriate suppliers (of affordable staple

food products for purchase by retailers); education, recruitment and training of retailers;

community outreach; provision of technical assistance to participating stores; compliance

monitoring; and evaluation of the program’s effectiveness.

Communities should review existing retailer incentive programs for ideas about key staff and

responsibilities that have impacted their success. For example, the Minneapolis Healthy Corner

Store program sent staff to stores biweekly to encourage accountability, build trust, and provide

technical assistance.2 Additionally, the program hired a grocery consultant that was an operation

manager of local healthy food co-ops. The consultant looked at individual stores to assess their

assets, identify enhancement strategies, assist with food procurement, and provided guidance and

support in storing and display of healthy food retail.3

It cannot be overstated that developing partnerships with local wholesalers, distributors, and food

markets, or coordinating purchasing clubs, is vital to a successful program. This effort will ensure

a supply of affordable produce and other staple foods for retailers. As discussed in the report,

smaller retailers may not be eligible to purchase from certain suppliers, or simply lack the

1 MINNEAPOLIS DEP’T. OF HEALTH AND FAMILY SUPPORT, MINNEAPOLIS HEALTHY CORNER STORE PROGRAM: MAKING PRODUCE MORE VISIBLE, AFFORDABLE AND ATTRACTIVE, 3 (2012), available at http://www.health.state.mn.us/divs/oshii/docs/Mpls_Healthy_Corner_Store.pdf [hereinafter MINNEAPOLIS

HEALTHY CORNER STORE PROGRAM]. 2 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM , supra note 1, at 13. 3 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM , supra note 1, at 4-5.




purchasing power to obtain bulk discounts on products. If these products are not affordable to the

retailer they will not be accessible to the community.

Cross-sector partnerships among local nonprofits, community development groups, local schools

and universities, local health organizations, private sector businesses, and other community

organizations may help defray costs and serve as a source of experienced and committed staff.4

Below is a breakdown of partnerships of the two healthy retail programs discussed in the report:

Minneapolis Healthy Corner Store Program:5 The lead organization was the

Minneapolis Healthy Department (MHD), which hired a grocery store expert. Partners were

Appetite for Change, a food-based social change organization,6 and CAPI, a social justice

organization.7 The program also worked with city licensing, environmental health and

public works departments to ensure stores were in compliance with existing health, zoning,

and other regulations.8 Community partners included high school youth, youth from a local

YMCA, and staff from the University of Minnesota’s Simply Good Eating Program.9

Philadelphia Healthy Corner Store Network: The Healthy Corner Store Network is a

program developed by The Food Trust in partnership with the Philadelphia Department of

Public Health’s Get Healthy Philly Initiative.10 The Network collaborated with 30

neighborhood and citywide organizations.11 The community organizations provided

resources, assisted in recruitment, raised awareness, assisted in food procurement, and

provided training and education.12

Identifying priority neighborhoods in which to increase access to staple foods is important. A

community should examine income, access to food retailers that provide staple foods, and

obesity/overweight rates in neighborhoods to determine where the program will have the greatest

impact. Resources available to communities to examine these factors are:

U.S. Census data (to identify low-income communities by zip code);13

4 CHRISTINE FRY ET AL., CHANGELAB SOLUTIONS, HEALTH ON THE SHELF: A GUIDE TO HEALTHY SMALL FOOD

RETAILER CERTIFICATION PROGRAMS, 14-18 (2013) available at http://changelabsolutions.org/sites/default/files/Health_on_the_Shelf_FINAL_20130322-web_0.pdf. 5 Healthy Corner Stores, MINNEAPOLISMN.GOV, http://www.minneapolismn.gov/health/living/cornerstores (last visited July 8, 2013). 6 To learn more about Appetite for Change visit http://www.appetiteforchangemn.org/mission-vision/. 7 To learn more about CAPI visit http://www.capiusa.org/OurApproaches.aspx. 8 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM , supra note 1, at 12-13. 9 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM , supra note 1, at 9. 10 THE FOOD TRUST, ET AL., PHILADELPHIA’S HEALTHY CORNER STORE INITIATIVE 2010-2012, 3 (2012), available at http://www.foodfitphilly.org/FOODFITPHILLY/assets/File/HCSI_Y2report_FINAL%202012.pdf [hereinafter PHILADELPHIA’S HEALTHY CORNER STORE]. 11 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 9. 12 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. F at 22. 13 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 5.


http://www.minneapolismn.gov/health/living/cornerstores

http://www.appetiteforchangemn.org/mission-vision/

http://www.capiusa.org/OurApproaches.aspx




U.S. Department of Agriculture’s (USDA) Food Access Research Atlas (to assess food

accessibility by census tract);14

USDA Food Environment Atlas (for county-level information on food environment factors

including food choices, health and well-being and community characteristics).15

Once selected, a program will want to work with local departments to ensure that the stores are

compliant with existing laws and regulations.16 For example, the program will want to ensure that

stores are compliant with existing building codes, sanitation regulations, and local fees and

permits.

A program may then identify retailers to recruit. Factors to consider when identifying target stores

include (but are not limited to):

Size of food retailer. For example, the Healthy Corner Store Initiative in Philadelphia works

with corner stores that are less than 2,000 square feet, have four aisles or less and a

single cash register.17

Community popularity of store for food purchases.

Public benefit acceptance, such as WIC certified stores and stores that accept SNAP

benefits.

After surveying community members and potential participants to identify priority foods and

understand local store owners’ concerns (and identify attractive incentives), the program should

develop the standards for inventory changes and incentives.18 Program staff should identify the

minimum changes stores must make to initiate participation. Higher levels of participation can

include more substantial changes and incentives to encourage voluntary advancement through

the program.

The program should evaluate its financial resources to ensure it can provide valuable incentives to

encourage retailers to participate at the highest level possible. The program should get creative

and think not only about financial incentives, but promotional activities that can increase sales and

awareness of the program. For example, a program may provide grocery baskets or marketing

materials, host cooking demonstrations or display healthy recipes at the store, or provide

advanced training for owners and staff.

The Appendices in this report include examples of incentives gleaned from existing programs.

Appendix D contains some conversion costs (costs to make physical changes to the store) that

might be covered as incentives. Appendix E contains examples of marketing and promotional

14 See Food Access Research Atlas, ERS.USDA,GOV, http://www.ers.usda.gov/data-products/food-access-research-atlas.aspx#.UaYi09jLWuI (last visited July 8, 2013). 15See Food Environment Atlas, ERS.USDA,GOV, http://www.ers.usda.gov/data-products/food-environment-atlas/about-the-atlas.aspx#.Ua5KkdjLWuI (last visited July 8, 2013). 16 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM , supra note 1, at 5. 17 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 4. 18 See CHRISTINE FRY, supra note 4, at 24; see also Id. at 25 (providing suggested survey questions).



http://www.ers.usda.gov/data-products/food-environment-atlas/about-the-atlas.aspx#.Ua5KkdjLWuI

http://www.ers.usda.gov/data-products/food-environment-atlas/about-the-atlas.aspx#.Ua5KkdjLWuI



materials used by other programs. (In-store marketing materials highlighting the healthy foods

may include decals, stickers on labels, magnets, or other promotional materials.)

Once key stores have been identified, they should be contacted with information about the

program. A sample recruitment letter may be found in Appendix A1. If a retailer agrees to

participate, she should sign a written agreement with the program. This agreement may be a

loose agreement (which can be terminated without penalty by either party at any time) or a more

formal contract, requiring some effort to terminate. The more valuable the incentives, the more

formal the agreement should be to ensure the return of valuable equipment or other incentives

upon termination by the retailer.

Initial outreach steps of the program include the following,19

Select stores to participate (store owner enthusiasm and interest is key to selection).20

Provide recruitment letter either in person or via mail.

Visit selected stores to introduce program through face-to-face meetings and written

materials.

Provide application to the store.

Notify stores of selection and present with written agreement.

Once stores have begun participating in the initial phase of the program, staff should monitor

compliance with the retailer responsibilities and provide any technical assistance necessary to

improve successful sales. Staff should also evaluate the impact of the program on the community.

As stated above, an adequate staff for monitoring allows a program to provide consistent and

frequent contact with participating stores that encourages compliance and increases commitment.

(An example of a compliance checklist may be found in Appendix F.)

In other programs, careful evaluation helped identify successes, head off problems, and develop

innovative ideas to improve the food retail environment. For example, Minneapolis’s program

assessed stores both before and after implementation of the program.21 It also provided an

opportunity for participating stores to provide feedback on the effectiveness of the program.22 By

way of further example, Philadelphia’s program partnered with Temple University and the

University of Pennsylvania to conduct the pre- and post-implementation evaluation.23 The primary

goal of the evaluation was to assess consumer buying behaviors outside of participating corner

19 KARA MARTIN & BRANDEN BORN, DELRIDGE HEALTHY CORNER STORE PROJECT: A TOOLKIT FOR COMMUNITY

ORGANIZERS AND STORE OWNERS, A-6, (2009) available at http://www.healthycornerstores.org/wp-content/uploads/resources/Delridge_HCS_Toolkit.pdf 20 Id. 21 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM , supra note 1, at 10. 22 MINNEAPOLIS HEALTHY CORNER STORE PROGRAM , supra note 1, at 10. 23 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 9.

http://www.healthycornerstores.org/wp-content/uploads/resources/Delridge_HCS_Toolkit.pdf




stores and “evaluate the availability, quality, and price of healthy and less healthy foods” in

participating corner stores.24

Below are examples of requirements and incentives a community may consider when developing

its certification program. Starting “small” permits store owners to make small changes for initial

participation. A gradual approach not only permits retailers to become more familiar with the new

inventory, but also allows the program to develop a relationship with stores and may improve the

sustainability of the changes.25 This model has been developed by incorporating elements of other

models and existing programs. The requirements and incentives included in the model should be

adjusted to suit the needs of the community.

Phase 1 represents the first step in the certification program. A retailer wishing to participate in

the program may be certified at Phase 1 by adding a minimum number of staple food products.

The model suggests the introduction of 3 new products, but a community should make this

determination based on community needs and the existing retail environment. At this stage the

program will want to enter into a written agreement with the participating retailer (e.g. a

memorandum of understanding (MOU) or other agreement to commit) so the responsibilities of

both the retailer and the program are clearly identified.

Phase 2 builds upon the introduction of new food products by improving the retail environment for

customers (and to the benefit of the store owner). It focuses on marketing and education within the

store to improve the products attractiveness and increase consumer awareness about their

availability. It also simplifies purchasing by requiring individual price labels, scales to weigh

produce purchases, and laser scanners to permit tracking of staple food purchases.

In return for making these in-store improvements retailers receive training on the handling,

storage, and display of new food products and engaging customers around healthy purchases. It

is also an opportunity for community involvement with the provision of in store marketing

materials. For example, the suggested recipe board (providing a “recipe of the month” featuring

staple foods) may present an opportunity for collaboration with local restaurants, culinary schools,

or other organizations.

Phase 3 focuses on increasing healthy options while reducing unhealthy products. Requirements

to consider at this phase include introduction of additional staple food items, introduction of low

24 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 9. 25 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 9.



sodium options, participation in WIC and SNAP, coupon promotions of staple food items and

reduction of sugary beverages. If a store is unable to obtain state certification for WIC,26 it may

meet this requirement by stocking foods that meet WIC minimum requirements.27

The model suggests the introduction of low sodium products as another way to improve the health

of the community. Many people in the United States consume sodium well above dietary guideline

of 2,300 mg per day (<1,500 mg for at-risk populations, such as those over 50 years, African

Americans, or those with high blood pressure, diabetes, or chronic kidney disease).28 The top 10

food sources of sodium according to the CDC are: breads and rolls, cold cuts and cured meats,

pizza, poultry, soups, sandwiches, cheese, pasta dishes, meat dishes and snacks.29

The program should increase the value of the incentives to correspond with more substantial

changes required of the retailer. One of the suggestions at this point is to connect retailers with

local wholesalers and other suppliers or coordinate retailers into purchasing clubs, so that they are

able to obtain staple food items at competitive prices. Additionally, the program may conduct one-

on-one training with store owners concerning professional development and business

management to improve the overall success of the particular store.

Phase 4 represents the highest level of commitment to changing the retail environment. At this

phase, the program selects participating stores for mini-conversions; in other words, making

physical improvements to improve the store’s ability to highlight staple food items, including

additional refrigeration units, freezers, and shopping baskets. A community may consider the

following questions when selecting a store for retail conversion:

Is the store busy? Is it near businesses and public buildings, accessible by public

transportation, and has a lot of foot traffic?

Is the store safe and well maintained with well stocked inventory, does it have employees

engaged in the store, is it clean, and does it give a positive impression?

26 The State only has to authorize enough stores to ensure that WIC participants have access to WIC food and that the state can “effectively manage.” Thus, not all stores that apply will be certified. For more information, visit http://www.fns.usda.gov/wic/wicretailstoresfactsheet.pdf. 27 Food vendor WIC applicant criteria can be found in 10 NY ADC 60-1.13. For stocking food the regulation states that the “applicant vendor shall stock WIC acceptable foods, as determined by the New York State Department of Health, in the minimum quantities prescribed in the vendor application document at the time of enrollment.” In order to determine stocking requirements a participating retailer must meet the program should reach out the New York State WIC program. For more information on New York’s WIC Program: toll-free number in state- 1-800-522-5006, voice- 518-402-7093, and email is [email protected]. The New York state website for WIC is http://www.health.ny.gov/prevention/nutrition/wic/index.htm. 28 CTR. FOR DISEASE CONTROL AND PREV., Vital Signs: Food Categories Contributing the Most to Sodium Consumption- United States, 2007-2008, MORBIDITY AND MORTALITY WEEKLY REPORT VOL. 61, 1 (2012) available at http://www.cdc.gov/mmwr/pdf/wk/mm61e0207.pdf; CTR. FOR DISEASE CONTROL AND PREV., SALT, http://www.cdc.gov/salt/ (last visited July 8, 2013). 29CTR. FOR DISEASE CONTROL AND PREVENTION, Vital Signs: Food Categories Contributing the Most to Sodium Consumption- United States, 2007-2008, MORBIDITY AND MORTALITY WEEKLY REPORT VOL. 61, 1

(2012) available at http://www.cdc.gov/mmwr/pdf/wk/mm61e0207.pdf.

http://www.fns.usda.gov/wic/wicretailstoresfactsheet.pdf

mailto:[email protected]

http://www.cdc.gov/mmwr/pdf/wk/mm61e0207.pdf

http://www.cdc.gov/salt/

http://www.cdc.gov/mmwr/pdf/wk/mm61e0207.pdf



Does it have the capacity to increase inventory and a capacity for more demanding

inventory such as a deli?

Is the owner engaged and interested in selling healthier options, excited to receive

equipment and training, and have an understanding of its business and customers? `30

If a store is chosen for a mini-conversion, a separate agreement should be signed. In that

agreement, participating stores should commit to using new units for the stocking and display of

staple food items only.31

In the alternative, stores that are not selected for mini-conversion can still improve the food retail

environment by making it appealing to, and safe for, the community. This may include improving

physical aspects of the store, such as installing exterior lighting and bicycle racks, removing

graffiti, preventing loitering, maintaining cleanliness of business premise inside and out, and

routinely removing spoiled and expired products.32 A store may also choose to reduce offerings of

unhealthy items, such as tobacco and/or alcoholic beverages and promote local products through

participation in Pride of New York.33

Under the model, stores eligible for conversion receive equipment at no cost. Those stores

certified at Phase 4 through alternative changes may have access to in-kind donations of lighting,

bicycle racks, trash receptacles, or the labor required to install these items. A program may also

consider a community event (e.g., ribbon cutting ceremonies or even a “grand re-opening”) to

introduce the store as a Phase 4 participant and recognize its commitment to the program to.34

The model also provides for an annual incentive for stores that remain certified at Phase 4. These

incentives are focused on general maintenance of the improvements through trainings, events,

and updated marketing materials to highlight the healthy changes made by the retailer.

EXAMPLES OF REQUIREMENTS AND INCENTIVES

FOR VOLUNTARY CERTIFICATION PROGRAM

Phases Incentives

Phase 1: Sign a memorandum of understanding or

contract committing to the program.

$100 cash incentive.

Provide and conduct customer survey (e.g., identify desirable staple foods, frequency of purchases at store, and sense of security at location.) Model customer

30 Modeled after Philadelphia’s Healthy Corner Store Initiative. See PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. D at 20. 31PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 7. 32 CHANGELAB SOLUTIONS, MODEL LICENSING ORDINANCE FOR HEALTHY FOOD RETAILERS, 24 (2012) available at http://changelabsolutions.org/publications/HFR-licensing-ord [hereinafter CHANGELAB MODEL LICENSING

ORDINANCE]. 33 Pride of New York is a program supported by New York State to market locally-sourced food products. A $25 fee allows a retailer to use Pride of New York logos and promotional materials on products grown or processed/produced in New York. For more details, see APPLICATION FOR PARTICIPATION IN THE PRIDE

PROGRAM, AGRICULTURE.NY.GOV, http://www.agriculture.ny.gov/AP/PrideOfNY/application.html (last visited July 8, 2013). 34 See CHRISTINE FRY, supra note 4, at 58 (discussing the Louisville program which hosts a ribbon cutting ceremony for newly certified stores under their Healthy in a Hurry program.).

http://changelabsolutions.org/publications/HFR-licensing-ord

http://www.agriculture.ny.gov/AP/PrideOfNY/application.html



Introduce [3] new products from each staple food

category.35 Staple food categories are:

Fresh Fruits and Vegetables

Fruits and Vegetables

Dairy Products

Whole Grains

Lean Proteins

Fresh Fruits and Vegetables: Fruits and vegetables

that have not been canned, processed, and are

unspoiled.36

Fruits and Vegetables: Fruits and vegetables that

are canned, frozen, or dried. Canned fruit should

be packed in natural juice or light syrup; canned

vegetables should contain 290 milligrams or less of

sodium per serving.37

Dairy Products: Animal and plant derived milks

without added caloric sweeteners (i.e., no flavored

milk), animal and plant derived low fat and nonfat

yogurts and cheeses. Includes lactose-free, lactose

reduced products.38

Whole Grains: Any food made from whole grain,

wheat, rice, oats, cornmeal, barley, or other cereal

grain and does not include more than 10 grams of

sugar per serving.39

Lean Proteins: Lean or low-fat meat and poultry,

seafood, eggs, nuts, seeds, beans, peas, and

processed soy products.40 Nuts and seeds must be

unsalted or lightly salted products.

survey available at Appendix C.

Training on the handling, storage and display of staple food items.

Provide decal or other marketing materials highlighting participation in the program

Phase 2: Choose and complete [3] of the

following:

Place and maintain in-store marketing materials that highlight staple foods.

Place and maintain recipe board using staple food items. Recipes should be simple and affordable.

Place and maintain clear pricing labels for individual staple food products.

Purchase scale to weigh healthy produce.

Full or partial financing for the purchase of scale, electronic scanners.

Supply recipes for the board on a regular basis (monthly, seasonally, etc.)

Conduct in-store training of employees on handling, storage and display of staple food items, upkeep of marketing materials, goals of certification, and engaging customers around healthy food purchases.

35 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. B at 15. 36 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. B at 15. 37 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. B at 15. 38CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at 13. 39CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at 18. 40 CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at 16.



Purchase electronic scanners to improve tracking of staple food purchases.

Provide marketing materials to stores (multilingual, based on community.

Phase 3: Continue to provide healthier options

Add [4] new products from each of the Staple Food Group categories

Carry [2] low or reduced sodium (salt) products from the following categories.

Soups, broth, and stock.

Dips, gravies, and condiments

Snacks- Chips, crackers, pretzels, mixed nuts, popcorn.

Cold Cuts

Cereal, bread, and pasta.

Prepared Meals (including frozen entrees)41

Choose [2] of the following: o Complete WIC Certification and

accept WIC benefits or meet minimum stocking requirements of WIC vendors.

o Participate in Federal Supplemental Nutrition Assistance Program (SNAP) program, accept EBT cards.

Offer one sale, coupon, or discount each month on any staple food item.42

Remove [4] sugar sweetened beverages products from your stock.

Discontinue sales of single serving Fountain Drinks over 16 ounces43

Discontinue free refills of Fountain Drinks44

Beverage Dispensing Machine: Device, including

fountain machines, which mixes concentrate or

syrup with any one or more ingredients to create a

sugar sweetened beverage and dispenses it into

an open container that is ready to drink.45

Fountain Drinks: Sugar-sweetened beverage

dispensed by a beverage dispensing machine.46

Sugar-Sweetened Beverages: Nonalcoholic

beverage, carbonated or noncarbonated, which is

Connect with and improve relationships with wholesale distributors, local markets, distribution hubs, and/or purchasing clubs.

Provide stock keeping unit (SKU) numbers of products that are staple foods to ease purchasing.

Advanced one on one training with owners and management to meet business goals.

Assist with participation in WIC and SNAP

Send store location information to local WIC offices and to local Eat Smart NY SNAP programs and counselors to direct those receiving benefits to the store.

41CTR. FOR DISEASE CONTROL AND PREVENTION, HIGH SODIUM INTAKE IN CHILDREN AND ADOLESCENTS: CAUSE

FOR CONCERN, CDC.GOV, 2 (2013) available at http://www.cdc.gov/salt/pdfs/children_sodium.pdf. 42 See CHRISTINE FRY, supra note 4, at 31. 43 CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at 26. 44 CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at 26. 45 CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at app. B at 2. 46 CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at app. B at 2.

http://www.cdc.gov/salt/pdfs/children_sodium.pdf



intended for human consumption and contains

caloric sweetener (sugars, fructose, glucose,

sucrose, fruit juice concentrate, other sugars)47

Phase 4: Committed inside and out

If selected :

Participate in retailer conversion.48

If not selected for conversions choose one of the

following:

Improve business property (e.g., lighting, security)

Reduce number of tobacco or liquor products by 20%.49

Participate in Pride of NY program

Free equipment for stores chosen for conversions (e.g., shelving and refrigerators).50

Formal media recognition of Phase 4 certification.

Communities provide connections with local products or produce that qualify under Pride of New York.

Connection to in-kind donations for improvement of business property.

For each year of compliance with all four

certification levels:

One annual training for employees and store owners

Updated marketing materials as issued.

Annual community event (e.g., cooking demonstration, tastings).

Updated purchasing/wholesaler information as issued.

47 CHANGELAB MODEL LICENSING ORDINANCE, supra note 32, at app. B, 2-3. 48 Modeled after Philadelphia’s Healthy Corner Store Initiative, see PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. D at 20. 49 See CHRISTINE FRY, supra note 4, at 32; ED BOLEN & KENNETH HECHT, NEIGHBORHOOD GROCERIES: NEW

ACCESS TO HEALTHY FOOD IN LOW-INCOME COMMUNITIES, CALIFORNIA FOOD POLICY ADVOCATES, 18 (2003) available at http://www.healthycornerstores.org/wp-content/uploads/resources/CFPAreport-NeighborhoodGroceries.pdf (“In some cities, corner stores are increasingly opposed by residents and local officials because they have become de facto liquor stores and because liquor stores have been shown in epidemiological studies to be magnets for violence and crime.”). 50 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 6.

http://www.healthycornerstores.org/wp-content/uploads/resources/CFPAreport-NeighborhoodGroceries.pdf

http://www.healthycornerstores.org/wp-content/uploads/resources/CFPAreport-NeighborhoodGroceries.pdf



Modeled After: Kara Martin & Branden Born, Delridge Healthy Corner Store Project: A Toolkit for

Community Organizers and Store Owners (2009) available at

http://www.healthycornerstores.org/wp-content/uploads/resources/Delridge_HCS_Toolkit.pdf.




Store Date

Address

Dear Storeowner,

We are excited to invite you to participate in the Healthy Retailer Certification Program led by [X local agency or community organization]. The goal of this program is to increase access to healthy and affordable food in [COMMUNITY] through its small food retailers. [COMMUNITY’s] residents depend on stores like yours.

Your store is [Reasons particular store has been identified as important to the Program].

The program asks that participating stores join the program at Phase 1. Phases 2-4 are optional and require additional commitment to changing the store environment. By joining the program and making these changes, not only will your store become eligible for the incentives associated with each phase, but we believe you will be making a positive impact on the community. We will provide training, financial assistance, marketing materials, and community education and outreach to help participating stores increase sales of staple food items in the community for. Our ongoing technical assistance is designed to help you be successful with your new inventory. Some of this assistance will include:

Training in the proper storage and display of new produce and other products

Providing in store-marketing materials to highlight the new inventory and educate consumers

Hosting community events to highlight the store’s participation in the program

Programs like this have been successful in Minneapolis, Philadelphia and other communities

across the country. We have attached a description of the program and the requirements and

incentives associated with each phase, as well as an application to the program. Please take the

time to consider what changes you would be willing to make to positively impact your community.

We will select participating stores on [DATE]. If interested please contact us at [phone]/ [e-mail]. We look

forward to hearing from you.

Sincerely,



EXAMPLES FROM: KARA MARTIN & BRANDEN BORN, DELRIDGE HEALTHY CORNER STORE PROJECT: A

TOOLKIT FOR COMMUNITY ORGANIZERS AND STORE OWNERS (2009) available at http://www.healthycornerstores.org/wp-content/uploads/resources/Delridge_HCS_Toolkit.pdf.

and

MINNEAPOLIS DEPARTMENT OF HEALTH AND FAMILY SUPPORT, MINNEAPOLIS HEALTHY CORNER

STORE PROGRAM: MAKING PRODUCE MORE VISIBLE, AFFORDABLE AND ATTRACTIVE, Appendix 3 (February 2012), available at

http://www.health.state.mn.us/divs/oshii/docs/Mpls_Healthy_Corner_Store.pdf).





Delridge Healthy Corner Store Project

Memorandum of Understanding

A Delridge Healthy Corner Store is a local food store that collaborates with the Delridge

Neighborhoods Development Association (DNDA) and the community to promote healthy

food access and to discourage activities that are detrimental to the well-being of the

community. It does so by stocking and advertising healthful products, discouraging

unhealthy practices in the vicinity of the store, abiding by existing laws, and participating in

activities that meet the nutritional needs of local community residents.

This Memorandum of Understanding outlines the activities that will be provided by the Delridge

Neighborhoods Development Association (DNDA) in a supporting role to implement the Delridge

Healthy Corner Store Project at STORE NAME, STORE ADDRESS. These services will be

provided to STORE NAME for compliance with specified criteria. The agreement will be effective

for the period of one year ending .

STORE NAME is committed to the well‐being of the neighborhood in which my store is

located and pledges to do the following as further developed in my store project plan:

Stock Healthy Foods

Sell a variety of the high quality fresh fruits and vegetables.

Stock whole grain products.

Stock low‐fat and skim dairy products.

Listen to and try to accommodate customers’ requests for healthy foods.

Market Healthy Foods

Display healthy foods prominently in the store.

Label and promote healthy items.

Limit the advertising of unhealthy foods, drinks and substances.

Adhere to High Business Standards

Keep prices of healthy foods affordable by participating in Federal Nutrition

programs such as Food Stamps and WIC.

Remove items past the sell‐by date from shelves.

Maintain high standards of cleanliness and safety inside and outside the

store.

Adhere to all laws regarding sales of tobacco and alcohol to minors.



Delridge Neighborhoods Development Association (DNDA) will implement the Delridge Healthy

Corner Store Project by:

Providing free marketing and advertising through a local media campaign

including leafleting, press opportunities, and in‐store promotional materials

(posters, window decals, shelf labels, etc.).

Assisting the store in meeting the goals agreed upon in the store project plan.

Monitoring the store’s progress, including bi‐annual formal evaluations and

monthly informal check‐ins with the storeowner.

The following parties pledge to uphold the standards listed above and will continue to

collaborate with community members to make the neighborhood a healthier place to live.

MERCHANT NAME

Owner, STORE NAME

Derek Birnie,

Executive Director, DNDA

Phillippia Goldsmith,

Delridge Healthy Corner Store Project Coordinator, DNDA

Date:









The “Findings” section of the model ordinance expresses the government rationale to

enact the law. These findings are important because courts reviewing the law may look to

the findings to see if the government had sufficient reasons and justifications for adopting

the measure. The findings should focus on explaining why a lack of access to nutritious

food is a problem, documenting the community’s lack of access, and demonstrating how

the proposed law will alleviate the problem. Some courts have expressed a preference for

localized findings of fact documenting the problem at the local level. To illustrate how local

findings can be integrated, the model provides three findings with blank figures. It is

advisable to add additional compelling localized findings, such as a map illustrating food

deserts. Additional supporting information and exhibits can also be introduced at

government hearings where the ordinance is considered. This supporting information may

then be referenced in the findings.

This model ordinance has been adapted for use with the permission of ChangeLab

Solutions.

The original model,

Model Licensing Ordinance for Healthy Food Retailers,

is available at http://changelabsolutions.org/publications/HFR-licensing-ord.

http://changelabsolutions.org/publications/HFR-licensing-ord



The [Common Council] of [City] hereby finds and declares that:

Obesity and overweight are grave public health issues that increase the risk of serious chronic

disease including diabetes, heart disease, stroke, and cancer.

During years 2009-2010, 35.9 percent of adults in the U.S. age 20 years and older were obese

and 33.3 percent were overweight.1

In 2008 this public health epidemic cost the U.S. about $147 billion in direct medical care costs.2

In New York, adult obesity and overweight prevalence rose from 42 percent in 1997 to 60 percent

in 2008.3 In 2010 over 5 million New York adults were overweight and over 3.5 million were

obese.4

In 2011 obesity related health problems cost New York

State $11.8 billion.5

Poor nutrition and diet places individuals at a greater risk for

obesity and overweight.6 One factor that results in poor

nutrition is infrequent access to stores selling food that is

both healthy and affordable.7

“Food deserts” are “areas that lack access to affordable

fruits, vegetables, whole grains, low-fat milk, and other

foods that make up the full range of a healthy diet.”8

1 NATL. CTR. FOR HEALTH STATISTICS, CTR. FOR DISEASE CONTROL AND PREV., FASTSTATS: OBESITY AND OVERWEIGHT, http://www.cdc.gov/nchs/fastats/overwt.htm (last visited June 7, 2013). 2 CTR. FOR DISEASE CONTROL AND PREV., OVERWEIGHT AND OBESITY: CAUSES AND CONSEQUENCES, http://www.cdc.gov/obesity/adult/causes/index.html (last visited June 7, 2013). 3 N.Y. DEP’T. OF HEALTH, OBESITY PREV., THE OBESITY PROBLEM, HEALTH.NY.GOV, http://www.health.ny.gov/prevention/obesity/ (last visited July 10, 2013). 4 KATHLEEN WALES & IAN BRISSETTE, BUREAU OF CHRONIC DISEASE EVALUATION AND RESEARCH, ADULT

OVERWEIGHT AND OBESITY IN NEW YORK STATE, 2000-2010, at 2 (2011), available at http://www.health.ny.gov/prevention/obesity/statistics_and_impact/docs/2000-2010_adult_obesity.pdf. 5 OFFICE OF THE STATE COMPTROLLER, SOARING HEALTH CARE COSTS HIGHLIGHT NEED TO ADDRESS

CHILDHOOD OBESITY, 1 (2012), available at http://www.osc.state.ny.us/reports/obesity_and_child_obesity_10_23_12.pdf. 6CTR. FOR DISEASE CONTROL AND PREV., CDC VITAL SIGNS: ADULT OBESITY (August 2010), http://www.cdc.gov/VitalSigns/AdultObesity/index.html (last visited June 7, 2013). 7 Id. 8 CTR. FOR DISEASE CONTROL AND PREV., A LOOK INSIDE FOOD DESERTS, http://www.cdc.gov/Features/FoodDeserts/ (last visited June 10, 2013).

New York State Law defines a “food

desert” as an area with limited access to

affordable and nutritious food, particularly

an area predominantly comprised of lower-

income neighborhoods and communities.

(New York State Agriculture and Markets

Law §260.)

http://www.cdc.gov/nchs/fastats/overwt.htm


http://www.health.ny.gov/prevention/obesity/







Food deserts are found in both urban and rural areas, as well

as in low income communities.9

Research has demonstrated a correlation between living in a

food desert, poor nutrition, and higher BMI.10

Poor nutrition in communities with limited access to healthy

foods may be exacerbated by an increased number of

convenience stores selling food products that are low in

nutrition and high in calories.11

Convenience stores and small grocers located in low-income

urban areas typically charge higher prices for nutritious

products.12 As a result, highly processed and high calorie

convenience foods are more affordable than healthy foods.13

Low-income neighborhoods and communities of color typically

contain fewer grocery stores and more fast food restaurants

and convenience stores than more affluent and largely

Caucasian neighborhoods.14 As a result, highly processed and

high calorie food is more readily available.15

Residents with limited access to full-service food stores often

rely on convenience stores to supplement infrequent trips to

full-service stores.16

9 Elizabeth Whalen & Michael Seserman, Looking for an Oasis in a Food Desert: Low Income New Yorkers Lack Access to Healthy Food , 4 (2011), available at http://www.cancer.org/acs/groups/content/@eastern/documents/webcontent/acspc-031472.pdf. 10 See Lisa Powell et al., Associations Between Access to Food Stores and Adolescent Body Mass Index, 33 (4S) AM. J. PREV. MED. S301 (2007); Nicole I. Larson et al., Neighborhood Environments: Disparities in Access to Healthy Foods in the U.S., 36 AM. J. PREV. MED. 74 (2009); Kimberly Morland, et al., Supermarkets, Other Food Stores, and Obesity The Atherosclerosis Risk in Communities Study, 30(4) AM. J. OF PREV. MED. 333 (2006). 11 CALIFORNIA CTR. FOR PUB. HEALTH ADVOCACY, UCLA CTR. FOR HEALTH POLICY RESEARCH & POLICYLINK, DESIGNED FOR DISEASE: THE LINK BETWEEN LOCAL FOOD ENVIRONMENTS AND OBESITY AND DIABETES 2 (2008), available at http://www.policylink.org/atf/cf/%7B97c6d565-bb43-406d-a6d5-eca3bbf35af0%7D/DESIGNEDFORDISEASE_FINAL.PDF [hereinafter DESIGNED FOR DISEASE]. 12 Judith Bell & Marion Standish, Building Healthy Communities Through Equitable Food Access, 5(3) COMMUNITY DEVELOPMENT INVESTMENT REVIEW: FEDERAL RESERVE BANK OF SAN FRANCISCO 75, 78 (2009). 13 Id. 14DESIGNED FOR DISEASE, supra note 61, at 2. 15DESIGNED FOR DISEASE, supra note 61, at 2. 16 Sanae Inagami, et al., You Are Where You Shop: Grocery Store Locations, Weight, and Neighborhoods, 31(1) AM. J. PREV. MED., 10, 15 (2006).

Statistics provided in this report should be

updated to reflect the most recent data. The

following resources may provide community

specific statistics:

Center for Disease Control and Prevention,

Division of Nutrition, Physical Activity, and

Obesity’s Overweight and Obesity.

http://www.cdc.gov/obesity/

New York State Department of Health,

Obesity Prevention webpage.


Trust for America’s Health, Key Health Data

about New York.

http://healthyamericans.org/states/?stateid=

NY

United States Department of Agriculture

(USDA) resources:

a. The Food Environment Atlas presents

county level statistics on food

environment factors influencing food

choices and diet quality, including store

and restaurant proximity, food prices,

and other community characteristics.

http://www.ers.usda.gov/data-

products/food-environment-atlas/go-to-

the-atlas.aspx#.Ua9h-djLWuI

b. The Food Access Research Atlas

provides data on food deserts by

census tract.

http://www.ers.usda.gov/data-

products/food-access-research-

atlas/go-to-the-

atlas.aspx#.Ua9iSdjLWuI







http://healthyamericans.org/states/?stateid=NY


http://www.ers.usda.gov/data-products/food-environment-atlas/go-to-the-atlas.aspx#.Ua9h-djLWuI



http://www.ers.usda.gov/data-products/food-access-research-atlas/go-to-the-atlas.aspx#.Ua9iSdjLWuI






In New York State, more than 656,000 New Yorkers live in a food desert.17

[Percent] of [City] residents are overweight or obese.

[Percent] of [City] residents live [X miles] from a food retailer that routinely provides nutritious

food, including a variety of products from all staple food categories: fruits, vegetables, whole grain

products, lean protein and low fat dairy.

[Percent] of [City] residents are low-income.

The Center for Disease Control and Prevention (CDC) recommends increasing the supply of shelf

space dedicated to healthier food products at existing stores.18

[City] has a substantial interest in improving the health and welfare of its residents, including

reducing the incidence of chronic disease.

Improving access to and availability of nutritious foods is an important step in improving health of

[City]’s residents.

It is the intent of the [City] to implement measures through this Chapter effective in reducing the

risk of chronic disease in [City] by improving residents’ access to nutritious foods.

As used in this Chapter, the following terms shall have the meanings indicated:

BEVERAGE DISPENSING MACHINE means a device, including fountain machines, which mixes

concentrate or syrup with one or more ingredients to create a Sugar Sweetened Beverage and

dispenses it ready to drink into an open container.

DAIRY PRODUCT means animal and plant-derived milk without added caloric sweeteners, animal

and plant derived low and nonfat yogurts and cheeses, including lactose free products and dairy

products defined pursuant to Agriculture and Markets Law §46-A.

DEPARTMENT means the [Department of XXX]

17 Whalen, supra note 59, at 2. 18 DIV. OF NUTRITION, PHYSICAL ACTIVITY, AND OBESITY , NAT’L CTR. FOR CHRONIC DISEASE

PREV. AND HEALTH PROMOTION, THE CDC GUIDE TO STRATEGIES TO INCREASE THE

CONSUMPTION OF FRUITS AND VEGETABLES, 9 (2011), available at http://www.cdc.gov/obesity/downloads/FandV_2011_WEB_TAG508.pdf.

http://www.cdc.gov/obesity/downloads/FandV_2011_WEB_TAG508.pdf



FOOD PRODUCT means all articles of food, drink, confectionary or

condiment, whether simple, mixed or compound, used or intended for

human consumption, and shall also include all substances or

ingredients intended to be added to food for any purpose.

FOOD RETAIL LICENSE means a license issued by the Department

to a Food Retailer to engage in the retail sale of Food Products in

[City] primarily for off-site consumption.

FOOD RETAILER means any retailer operating in [City] with more

than [200] and less than [5,000] square feet of Retail Space primarily

selling Food Products and non-Food consumer products intended for

preparation, use or consumption off-site. Food Retailer does not

include:

Mobile Food Vending Units,

Stores and vendors selling primarily fruits and vegetables,

Specialty Food Stores,

Grocery Stores,

Restaurants primarily in the business of selling food for

consumption on site.

FOUNTAIN DRINK means Sugar Sweetened Beverages dispensed

by a beverage dispensing machine.

GROCERY STORE means a food retail establishment that has at

least [5,000] square feet of Retail Space.

MOBILE FOOD VENDING UNIT means a food service establishment

located in a pushcart or vehicle, self or otherwise propelled, used to

store, prepare, display, service or sell food, or distribute food free of

charge to the public for consumption in a place other than in or on the

unit. Any such pushcart or vehicle shall be deemed a mobile food

vending unit whether operated indoors or outdoors, on public, private

or restricted space.

PERISHABLE FOODS means any food that may spoil or otherwise

become unfit for human consumption because of its nature, type, or

physical condition. Perishable food includes, but is not limited to, fresh

or processed meats, poultry, seafood, dairy products, bakery

products, eggs in the shell, fresh fruits or vegetables and foods that

have been packaged, refrigerated or frozen, or otherwise require

refrigeration to remain nonperishable. This definition shall not include

game or wild game.

PERSON means any natural person, company, corporation, firm,

partnership, business, organization, or other legal entity.

PRODUCE means fruits or vegetables in their raw or natural state,

whether offered whole or pre-sliced.

Section 2 defines the terms used

in the model ordinance. A

community may decide to use

existing definitions, particularly if

the licensing system is

incorporated into a larger body of

law (where, for example, “person”

is already defined).

This model is intended to apply to

small food retailers, such as

convenience stores, corner stores

and bodegas. The rationale is that

large grocery stores typically

provide an ample supply and

variety of staple foods. Should this

not be the case in a particular

community, the ordinance could be

modified to apply to stores that

serve as the primary food sources

of the community, including larger

grocery stores. The minimum

requirements for stocking staple

foods may be changed, and

different store categories may

have different requirements, based

on their size.

The definition of “food product”

used in this model derives from

New York Agriculture and Markets

Law §2.

The definition of “mobile food

vending unit” used in this model

derives from NYC Health Code

Article 89, §89.03.

The definition of “perishable foods”

used in this model derives from

New York Agriculture and Markets

Law §71-y.



PROTEIN means lean or low-fat meat and poultry, eggs, seafood, nuts, seeds, beans, peas, and

processed soy products.

RETAIL SPACE means the [floor area/ combined floor area and shelf space] of a store where

products, including non-food products, are displayed and offered for sale.

SPECIALITY FOOD STORE means a retail operation that sells or offers for sale specific or limited

types or groups of food products and does not carry a general variety of food as does a Food

Retailer, as defined under this section, as determined by the Department.

STAPLE FOODS means dairy products, produce, protein, and whole grains, whether frozen or

unfrozen.

SUGARY SNACKS means processed snacks where over 50% of total weight is comprised of

sugar, or other sweetener, artificial or otherwise.

SUGAR SWEETENED BEVERAGES means nonalcoholic beverage, carbonated or

noncarbonated, which is intended for human consumption and contains caloric sweetener

(sugars, fructose, glucose, sucrose, fruit juice concentrate, or other sugars).

WHOLE GRAINS means food in which whole grain is the primary ingredient by weight, and which

meets labeling requirements established by federal Food and Drug Administration for making a

health claim as a “whole grain food with moderate fat content.”

(A) Starting [Enforcement Date], no Food Retailer shall sell, offer for sale or permit the sale of

Food Products to consumers in [City], without a valid

Food Retail License issued by the Department.

(B) All Food Retail Licenses issued pursuant to this section

are nontransferable and non-assignable and are valid

only for the Food Retailer and the specific address

indicated on the Food Retail License. A separate Food

Retail License is required for each address at which

Food Products are sold or offered for sale. Any change

in business ownership or business address requires a

new Food Retail License.

(C) All Food Retail Licenses issued pursuant to this section are valid for no more than one year

and expire on the [Day of Month (of Enforcement Date)] following the effective date of theFood

Retail License. As set forth in Section 9, a Food Retail License may be revoked by the

Department prior to its expiration date for cause.

(D) Applications for a Food Retail License shall be submitted to the Department in writing upon a

form provided by the Department. The Department may require such forms to be signed and

Section 3 requires small food retailers to

obtain a license from the Department by the

specified “Enforcement Date.” The licenses

will expire one year from that date. The

Enforcement Date should be set so that it

provides the Department with enough time

to implement the law and review

applications.



verified by the applicant or an authorized agent thereof.

(E) Applications for a Food Retail License shall be accompanied by the fee set forth in Section 7.

(F) The issuance of any Food Retail License pursuant to this Chapter is done in [City’s] discretion

and shall not confer upon licensee any property rights in the continued possession of such a

license.

(A) A Food Retailer shall, at all times, stock Staple Foods as follows:

(1) A Food Retailer shall utilize [_%] of its Retail Space for Staple

Foods. [_%] of this Retail Space for Staple Foods will be utilized

for Perishable Foods.

(2) A Food Retailer shall, at all times, stock the following minimum

variety of Staple Foods:

a) [_] varieties of Dairy Milk Product

b) [_] varieties of Produce

c) [_] varieties of Whole Grain Products

d) [_] varieties of Protein

(B) No more than [_%] of bottled beverages offered for sale by Food

Retailer may be Sugar Sweetened Beverages.

(C) No more than [_%] of non-perishable foods offered for sale by

Food Retailer may be Sugary Snacks.

(D) A Food Retailer shall accept Supplemental Nutrition Assistant

Program (SNAP) benefits

(E) A Food Retailer shall maintain the interior and exterior of the

business premises in a manner that does not constitute a

nuisance. At a minimum a Food Retailer shall:

(1) Provide adequate lighting within the business premise,

including parking lots and all entrances and exits;

(2) Provide adequate trash and recycling receptacles;

(3) Remove any graffiti on the business premises within [time

period] of receiving notice;

(4) Prevent loitering on the business premises;

(5) Maintain the cleanliness of all interior and exterior areas of the business premises,

including shelf spaces; and

(6) Comply with all state laws prohibiting littering.

Section 4 describes the

conditions required of a Food

Retailer to maintain its license.

Subsections (B) through (F) are

optional requirements that

realize changes to the retail

environment beyond the

addition of staple food items.

The community must decide

what changes will be most

feasible and effective and

should adapt the model

accordingly.

A community can decide to use

a square footage requirement, a

simple requirement for a

minimum variety of staple

foods, or both. The model

contains both in order to ensure

the requirement will not be

fulfilled simply by stocking one

product within each category.

The number of different

products will depend on

community needs.



(A) In addition to the requirements of Section 4, a Food

Retailer that complies with any of the following performance

standards may be eligible to receive an incentive as provided

in this section. To qualify for an incentive, a Food Retailer

shall voluntarily:

(1) Exceed the applicable square footage stocking

requirements for Staple Foods by [_%];

(2) Exceed the applicable variety requirements for Staple

Foods to meet the following variety standards

a. [_] varieties of Dairy Milk Product

b. [_] varieties of Produce

c. [_] varieties of Whole Grain Products

d. [_] varieties of Protein;

(3) Carry [2] low or reduce sodium (salt) products from

each of the following categories

a. Soups, broth, and stock

b. Snacks including chips, crackers, pretzels,

mixed nuts, and popcorn

c. Dips, gravies, and condiments

d. Cold Cuts

e. Cereal, bread, and pasta

f. Prepared Meals including frozen entrees

(4) Not sell or offer for sale alcoholic beverages OR No

more than [_%] of beverages offered for sale by food

retailer may be alcoholic beverages;

(5) Not sell or offer for sale a single serving of a Fountain

Drink larger than [_] ounces, and not offer or provide

free refills for Fountain Drinks;

(6) Not sell or offer for sale Tobacco Products OR reduce

the total Retail Space for tobacco products by [_%];

(7) Participate in the Pride of New York program administered by the New York Department of

Agriculture and Markets;

(8) Use marketing materials approved by Department to promote Staple Food items;

Section 5 is an optional section. It identifies

additional performance standards to

accomplish more substantial changes to the

retail environment. It offers incentives to

retailers in exchange for making changes

beyond simply providing the minimum

staple foods. A community incorporating

this section into a law should authorize the

administering department to adopt rules and

regulations that lay out the requirements

and incentives in more detail.

Excess sodium consumption is a risk factor

for serious illness. Many people in the U.S.

consume sodium well above the dietary

guidelines, which are ≤ 2,300 mg ( ≤1,500

mg for at-risk populations, such as those

aged 51 years or older, African Americans,

and those who suffer from high blood

pressure, diabetes, or chronic kidney

disease). The top 10 food sources of

sodium according to the CDC are: breads

and rolls, cold cuts and cured meats, pizza,

poultry, soups, sandwiches, cheese, pasta

dishes, meat dishes and snacks. The

license provides an opportunity to require or

incentivize a store to carry low sodium

options in these or other food categories.

For more information about sodium content,

see “Understanding Food Labels” at

http://www.worldactiononsalt.com/resources

/factsheets/56336.pdf



(9) A Food Retailer shall apply to be certified as

a WIC vendor to accept benefits provided

through the Special Supplemental Nutrition

Program for Women, Infants and Children or

meet minimum stocking requirements of

WIC vendors to the extent those

requirements are not met by this license;

(B) Food Retailers that meet any of the

performance standards set forth in subsection

(a) shall be eligible to receive one of the

following incentives, to be determined by the

Department, for each of the performance

standards met:

(1) Expedited processing of the Food Retail

License application, or expedited processing

of other licenses or permits required for the

business by [City];

(2) Reduced or waived fees for the Food Retail

License or reduced or waived fees for other

permits or licenses required for the Food

Retailer by the [City];

(3) Increased parking or non-metered parking

adjacent to store for customers;

(4) A tax exemption or other tax incentives as

provided by [City]; or

(5) Other incentives as determined by the

Department.

(A) Upon the receipt of a completed application for

a Food Retail License and the fee required by

Section 7, the Department shall inspect the

location at which Food Product sales are to be

permitted. The Department may also ask the

applicant to provide additional information that is

reasonably related to the determination of

whether a license may issue.

(B) The Department may refuse to issue a Food

Retail License to an applicant if it finds that one or more of the following bases for denial

exists:

WIC is a federal program providing benefits to low-

income women who are pregnant, postpartum and

breastfeeding and infants and children up to age 5 that

are at nutritional risk.1 States are responsible for

authorizing stores that can accept WIC checks. There

is no fee to apply for authorization.1 Not every store

that applies has to be certified since a State only has

to authorize enough stores to ensure that WIC

participants have access to WIC food and that the

state can “effectively manage.”1 Because of this, the

model license provides that a store can also stock to

meet WIC minimum requirements in lieu of applying to

WIC.

Food vendor WIC applicant criteria can be found in 10

NY ADC 60-1.13. For stocking food the regulation

states that the “applicant vendor shall stock WIC

acceptable foods, as determined by the New York

State Department of Health, in the minimum quantities

prescribed in the vendor application document at the

time of enrollment.”1 In order to determine stocking

requirements a participating retailer must meet the

Department should reach out the New York State WIC

program.

New York’s WIC Program information is: toll-free

number in state- 1-800-522-5006, voice- 518-402-93,

and email is [email protected]. The New York

state website for WIC is

http://www.health.ny.gov/prevention/nutrition/wic/index.htm.

Section 6 provides that during the application process

the Department must inspect the location. The license

fee should be set at a level to support initial

application inspection and subsequent enforcement

and inspection costs. This section also provides

circumstances under which a license can be denied.

mailto:[email protected]

http://www.health.ny.gov/prevention/nutrition/wic/index.htm



(1) The information presented in the application is incomplete, inaccurate, false, or

misleading;

(2) The fee for the application has not been paid as required;

(3) The applicant has been found by a court of law or administrative body to have violated any

federal, state, or local laws pertaining to the sale, storage or handling of Food Products;

(4) The applicant has not paid to [City] outstanding fees, fines, penalties, or other charges

owed to the [City]; or

(5) The Department determines, in accordance with written criteria established to further the

purposes of this Chapter, that the applicant is otherwise not fit to hold a Food Retail

License.

(A) Each application for a Food Retail License shall be

accompanied by a fee of $[Fee Amount].

(B) Starting two years after the effective date of this

Chapter, the Department may, on an annual basis,

modify the fee required pursuant to Section 7(A). The

fee shall be calculated so as to recover the cost of

issuing a license, administrating the license program,

providing retailer education, conducting retailer

inspection and compliance checks, documenting

violations and prosecuting violators, but shall not exceed

the cost of the regulatory program authorized by this

Chapter. All fees and interest upon proceeds of fees

shall be used exclusively to fund the program. Fees are

nonrefundable except as may be required by law.

(A) Any Food Retail License issued pursuant to this chapter

shall be displayed prominently at the location where the

Tobacco Products are sold so that it is readily visible to

customers.

(B) Selling, offering for sale, or permitting the sale of any

Food Product by a Food Retailer without a valid Food

Retail License displayed in accordance with Section 8(A)

constitutes a violation of this Chapter.

Section 7 provides the fee amount to be paid

by the applicant. The fee amount has been

left blank and should reflect the amount

necessary to implement, run, and enforce

the licensing system. This amount will vary

by locality and requires localized analysis to

best calculate and estimate the costs of the

licensing system.

This section also allows the Department to

adjust the fee on an annual basis two years

after the start of the licensing system. This

allows the Department to increase or

decrease the license fee to reflect the fiscal

needs of the licensing system.

Section 8 requires the license to be

displayed to permit customers and

inspectors to verify that the food retailer is

operating pursuant to this Chapter’s

requirements. Failure to display the license

may incur penalties and fines.



(A) The Department may suspend or revoke a Food Retail

License issued pursuant to this Chapter for violations of the

terms and conditions of this Chapter or for violation of any

federal, state, or local law or regulation pertaining to the

sale, storage or handling of Food Products.

(B) The Department may revoke a Food Retail License if the

Department finds that one or more of the bases for denial of

a license under Section 6 existed at the time application was

made or at any time before the license issued.

In order to assist retailers to understand and comply with

requirements of this Chapter the Department shall

(A) Prepare fact sheets, guides, and other educational

materials to explain the requirements of this chapter, how

inspections occur, and penalties for non-compliance.

Materials shall be in English and [designate other

languages that may be necessary for your City];

(B) Conduct at least [3] trainings annually concerning the

requirements of this Chapter for all Food Retailers

operating in [City];

(C) Provide individual technical assistance to any Food

Retailer requesting such assistance, to help them

determine whether their business is in compliance with the

requirements of this chapter, and if not, how to gain

compliance; and

(D) Educate the community about the healthy food stocking

requirements for Food Retailers.

(A) The Department or its authorized designee(s) shall enforce

the provisions of this Chapter. The Department may

conduct periodic inspections in order to ensure compliance

with this Chapter.

Section 10 requires the Department to

provide education and training to assist

retailers to comply with the license. The

licensing fee should consider costs

necessary to perform the requirements of

this Section. This provides an

opportunity for the Department to partner

with other departments, agencies, and

community organizations to conduct

trainings, community outreach and

education, and compile materials on

compliance with the license.

Section 9 addresses the revocation of

licenses. Violations of the licensing

system’s requirements and federal,

state or local laws regarding food

handling, sale and storage may result in

license suspension or revocation. The

Department charged with enforcement

can conduct inspections to ensure

compliance.

Section 11 addresses enforcement of the

licensing requirements. In addition to

suspension and revocation of licenses

described in Section 9, the Department

may issue written warnings and

subsequent monetary fines for violations

of this Chapter’s requirements. The fines

may be adjusted to match existing fines

(for example other fines the Department

issues) and accomplish community goals.



(B) In addition to the penalties provided for in Section 9, and any other remedy authorized by law,

any Food Retailer found to be in violation of this Chapter may be subject to a written warning

for the first violation, a civil penalty of not more than $250 for a second violation within a

twelve-month period, a civil penalty of not more than $500 for the second violation within a

two-year period, and a civil penalty of not more than $1000 for the third and each subsequent

violation within a two-year period. Each day on which a violation occurs shall be considered a

separate and distinct violation.

The Department may issue and amend rules, regulations,

standards, guidelines, or conditions to implement and enforce this

Chapter.

The provisions of this Chapter are declared to be severable, and if

any section of this Chapter is held to be invalid, such invalidity shall

not affect the other provisions of this Chapter that can be given

effect without the invalidated provisions.

The effective date of this ordinance shall be one hundred and

eighty (180) days from the date of its enactment.

Section 13 and 14 are technical

provisions found in many laws.

Section 13 provides that if any piece

of this licensing system is struck

down in court, the remaining parts

remain valid.

Section 14 provides that the law will

go into effect 180 days after it is

enacted—approximately six months.

After this date, the Department has

the authority to act on sections of this

law and begin implementation. This

is different from the enforcement

date, which is when the licensing

system should be in place and

licenses issued. These dates should

permit the Department to begin

community outreach and retailer

education and training prior to

enforcing the license requirements.

Section 12 authorizes the Department

to create further guidance,

requirements, and procedures not

addressed in the ordinance to ensure

effective implementation of the

licensing system.





The Model Zoning Amendment to Improve Distribution of Nutritious Food is intended to provide an

option for communities seeking to improve access to healthy foods by encouraging the

development of healthier retailers (specifically, corner or convenience stores). The model

describes the general requirements of any zoning amendment, specific suggestions for legislative

language, as well as additional incentives communities may consider implementing to increase

the public’s access to healthy foods.

As discussed in the report, the purpose of zoning law is to regulate the use of land within a

particular jurisdiction. Local governments use zoning laws to divide a jurisdiction into certain

districts (or zones), and identify the uses permitted (or prohibited) within each district. Zoning

laws may be used to promote “health and general welfare” for a community’s residents, and

this may include certain business regulation for such purposes (such as the permissible

location of certain types of businesses).1 The model is intended to support land uses which

will ensure residents of a community have adequate access to essential goods at locations

convenient to them.

The goal of zoning is to use a community’s land in an efficient, cohesive, and balanced manner.2

New York State enabling laws require that a community, when regulating via zoning, do so in

support of a comprehensive or well considered plan.3 The purpose of a comprehensive or well

considered plan is to provide a blueprint of the long-term goals of the community.4 There are two

“sources” of a community’s comprehensive plan: (1) A community can formally propose and file a

comprehensive plan according to state law or (2) a court, when reviewing a challenged zoning

ordinance, can infer such a plan from surrounding circumstances.5

New York State law provides that a formally adopted comprehensive plan may consist of

materials including (but not limited to) maps, charts, resolutions, reports, and other materials that

1 See, e.g., N.Y. TOWN LAW §263. 2 Marx v. Zoning Bd. of Appeals of Village of Mill Neck, 137 A.D. 2d 333, 337 (1988). 3 N.Y. GEN. CITY LAW §§ 20(24), 20(25) (“well considered plan”); N.Y. TOWN LAW §§ 261-285; N.Y. VILLAGE

LAW, §§ 7-700 to 7-742. Counties have not been granted the power to adopt zoning regulations. 4 See Rayle v. Town of Cato Bd., 295 A.D. 2d 978, 979 (2002); see also N.Y. STATE & N.Y. DEP’T OF STATE, Creating the Community You want: Municipal Options for Land Control in JAMES A. COON LOCAL

GOVERNMENT TECHNICAL SERIES 3 (2011). 5 N.Y. STATE & N.Y. DEP’T OF STATE, Creating the Community You want: Municipal Options for Land Control in JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES 9 (2011); Tracy Bateman Farrell et al, Requirement of Comprehensive Plan; Interim, Spot, and Piecemeal Zoning: In General, 12 N.Y JUR. 2D BUILDINGS § 166 (2014); Counties may also adopt a comprehensive plan to guide the development of county property, see NEW YORK GENERAL MUNICIPAL LAW 239-d; Municipalities may also create a comprehensive plan to be independently adopted by participating municipalities, See N.Y. GENERAL CITY LAW §20-g(4)(c), N.Y. GENERAL MUNICIPAL LAW §119-u(4)(c).



describe a community’s objectives, principles and policies for the “immediate and long-range

protection, enhancement, growth and development” of the community.6 This plan is prepared and

adopted by a community’s legislative body, subject to a public hearing.7 A community is required

to refer a proposed comprehensive plan, or any amendment thereto, to a county board or regional

planning agency for review.8 Once the plan or amendment is approved, it must be filed with the

local clerk’s office and the county planning agency office.9

If a community has not formally adopted a comprehensive plan under state law, case law permits

the inference of a comprehensive plan.10 A proposed zoning measure may be well considered if it

“conforms to a master plan, is broad in scope of coverage, all inclusive in control of use, height,

and area, or internally consistent zoning based on a rational underlying policy.”11 This inference

may arise through the examination of all “available and relevant” evidence of the community’s

land use policies.12 A community that fails to document the support for such an ordinance or

amendment, whether through research, existing ordinances, general land use policies, or other

measures is unlikely to demonstrate that the proposed zoning measure supports an overall plan

for the community.13 However, a proposed zoning ordinance or amendment is not required to

explicitly fit within a comprehensive plan but rather support it, with a recognition that the needs of

a community do change over time.14

A community considering the adoption of zoning amendments designed to improve distribution of

(and therefore access to) nutritious foods may want to first ensure that any formal comprehensive

6 See N.Y. VILLAGE LAW §7-722, N.Y. TOWN LAW, §272-a, and N.Y. GENERAL CITY LAW §28-a.; See Hart v. Town Bd. of Town of Huntington, 980 NYS 2d 128. 132 (2014) (“[T]he Master Plan outlined a number of concerns and goals. One of which was to retain the low-density, village-like character of the Town. However, the Master Plan also detailed additional foals in recognition of the fact that the demographics of the Town’s population were changing, such as the need for a diverse housing stock, the need for senior housing, the need for affordable housing, and the need to reserve opens spaces. Al though the proposed development will likely increase the density of the neighborhood, it will also preserve a sizable portion of the property as open land, provide senior housing, and provide a number of affordable units.”). 7 See N.Y. GENERAL MUNICIPAL LAW 239-m (3); The legislative bodies for each type of municipality are: the ”legislative body” for cities, see N.Y. GENERAL CITY LAW 28-a(5); the Town Board for towns, see N.Y. TOWN

LAW §272-a(5)(b); the Village Board of Trustees or, by special resolution of the Board, a planning board or special board, for villages, see N.Y. VILLAGE LAW7-722(4). Public hearings are required by N.Y. CITY LAW 28-a(7) , N.Y. TOWN LAW §272-a(6), and N.Y. VILLAGE LAW 7-722(6). 8 N.Y. CITY LAW §28-a( 6)(b); N.Y.TOWN LAW §272-a(5)(b); N.Y. VILLAGE LAW §7-722(5)(b). 9 Filing is required by N.Y. GENERAL CITY LAW §28-a(13), N.Y. TOWN LAW §272-a(12), and N.Y. VILLAGE LAW §7-722(12). 10 GOVERNOR ANDREW M. CUOMO AND CESAR A PERALES, ZONING AND THE COMPREHENSIVE PLAN, NEW YORK

STATE AND DEPARTMENT OF STATE 3(reprinted 2011). 11 Udell v. McFadyen, 40 Misc. 2d 265, 266 (1963). 12 Asian Americans for Equality v. Koch, 72 NY 2d 121, 131 (1988). 13 See Los-green Inc. v. Weber, 548 NYS 2d 832, 833 (1989) (In this case the town planning board and consultant did not prepare a report, cite to a comprehensive plan, provide evidence to support the rezoning, or conduct studies to support rezoning. As a result the court found that the record contained no evidence of the town board considering a comprehensive plan in order to rezone and the decision to do so was arbitrary and capricious.). 14 Matter of Town of Bedford v. Village of Mount Kisco, 33 NYS 2d 178, 188 (1973)(“What is mandated is that there be comprehensiveness of planning, rather than special interest, irrational ad hocery. The obligation is support of comprehensive planning, not slavish servitude to any particular comprehensive plan. Indeed sound planning inherently calls for recognition of the dynamics of change.”).



plan includes “reasonable access to nutritious food” or something similar as an important public

health goal.15 Thereafter, and for communities without a formal plan, a community should include

evidence that the proposed zoning amendment will benefit the community by improving access to

nutritious food. This can be accomplished by presenting research findings at hearings, or

incorporating information and evidence within the “findings” section of the legislation, which lays

out the intent of the legislature in adopting the amendment. Ultimately, the goal is to demonstrate

that the legislation reflects a well-considered plan.16

When a community decides to amend its zoning law, it must comply with the State Environmental

Quality Review Act (SEQRA). The law requires local governments to consider environmental

factors when taking certain actions, such as the adoption of zoning laws.17 Essentially, to

complete any local action, a municipality must include the issuance of a negative declaration (i.e.,

that the proposed zoning law has no significant adverse environmental impact) 18 or the

preparation of an environmental impact statement (EIS) identifying any potential adverse

environmental impact.19

In the case of the type of zoning change proposed here, it is unlikely that such a law will cause

any significant adverse environmental impact; thus, a negative declaration may be all that is

necessary. Nevertheless, the state has prepared an “Environmental Assessment Form” (designed

to assist municipalities in determining whether an action is environmentally significant or non-

significant) which a municipality should complete for any zoning proposal.20

Below is model language (in italics) designed to be modified by a municipality to suit its particular

needs, existing zoning laws, and comprehensive plan.

15 See Begami v. Town Bd. of Town of Rotterdam, 949 NYS 2d 245, 248(2012) (Finding that the Town’s amendment to its comprehensive plan, adopted after “exhaustive studies,” supported the decision by the town to rezone.). 16 GOVERNOR ANDREW M. CUOMO AND CESAR A PERALES, ZONING AND THE COMPREHENSIVE PLAN, NEW YORK

STATE AND DEPARTMENT OF STATE 4(reprinted 2011); See Nicholson v. Incorporated Village of Garden City, 978 NYS 2d 288, 290(2013) (“Moreover, the local law was enacted after the issue of the subdivision of certain large corner lots in the Central Section of the Village was studied by an expert engaged by the Village, who advised it on the necessity of additional regulation, and offered alternative approaches to resolve the issue.”). 17 See 6 NY ADC 617.1. 18 See NY ADC 617.2(y); A lead agency can also issue a conditional negative declaration where the action as proposed could result in significant adverse environmental impacts unless mitigation measures identified and required by the lead agency are taken to that no significant adverse environmental impact results, see NY ADC 617.2(h). 19 6 NY ADC 617.3. 20 6 NY ADC 617.6; see 6 NY ADC 617.2.



An Ordinance to Provide for Better Distribution and Accessibility of Nutritious Foods for the

Convenience of the Public

The “Findings” section of the model ordinance expresses the government rationale to enact the

law. This section is important because courts reviewing the law may look to the findings to

determine whether the government had sufficient justification for adopting the measure. The

findings should focus on explaining why a lack of access to nutritious food is a problem,

documenting the community’s limited access, and demonstrating how the proposed law will

alleviate the problem. Some courts have expressed a preference for localized findings of fact

documenting the problem at the local level. To illustrate how local findings can be integrated, the

model provides some findings with blank figures. It is advisable to add additional compelling

localized findings, such as a map illustrating food deserts. Additional supporting information and

exhibits can also be introduced at government hearings where the amendment is considered. This

supporting information may then be referenced in the findings.

The [Common Council] of [City] hereby finds and declares that:

Obesity and overweight are grave public health issues that increase the risk of serious

chronic disease including diabetes, heart disease, stroke, and cancer.

During years 2009-2010, 35.9 percent of adults in the U.S. age 20 years and older were

obese and 33.3 percent were overweight.21

In 2008 this public health epidemic cost the U.S. about $147 billion in direct medical care

costs.22

In New York, adult obesity and overweight prevalence rose from 42 percent in 1997 to 60

percent in 2008.23 In 2010 over 5 million New York adults were overweight and over 3.5

million were obese.24

In 2011 obesity related health problems cost New York State $11.8 billion.25

21 NATL. CTR. FOR HEALTH STATISTICS, FASTSTATS: OBESITY AND OVERWEIGHT CTR. FOR DISEASE CONTROL AND PREV., http://www.cdc.gov/nchs/fastats/overwt.htm (last visited June 7, 2013). 22 CTR. FOR DISEASE CONTROL AND PREV., OVERWEIGHT AND OBESITY: CAUSES AND CONSEQUENCES, http://www.cdc.gov/obesity/adult/causes/index.html (last visited June 7, 2013). 23 N.Y. DEP’T. OF HEALTH, OBESITY PREV., THE OBESITY PROBLEM, HEALTH.NY.GOV, http://www.health.ny.gov/prevention/obesity/ (last visited July 10, 2013). 24 KATHLEEN WALES & IAN BRISSETTE, ADULT OVERWEIGHT AND OBESITY IN NEW YORK STATE, 2000-2010, BUREAU OF CHRONIC DISEASE EVALUATION AND RESEARCH 2 (2011), available at http://www.health.ny.gov/prevention/obesity/statistics_and_impact/docs/2000-2010_adult_obesity.pdf. 25 OFFICE OF THE STATE COMPTROLLER, SOARING HEALTH CARE COSTS HIGHLIGHT NEED TO ADDRESS

CHILDHOOD OBESITY 1 (2012), available at http://www.osc.state.ny.us/reports/obesity_and_child_obesity_10_23_12.pdf.

http://www.cdc.gov/nchs/fastats/overwt.htm







Poor nutrition and diet places individuals at a greater risk for obesity and overweight.26

One factor that results in poor nutrition is infrequent access to stores selling food that is

both healthy and affordable.27

“Food deserts” are “areas that lack access to affordable fruits, vegetables, whole grains,

low-fat milk, and other foods that make up the full range of a healthy diet.”28

Food deserts are found in both urban and rural areas, as well as in low income

communities.29

Research has demonstrated a correlation between living in a food desert, poor nutrition,

and higher BMI.30

Poor nutrition in communities with limited access to healthy and nutritious foods may be

exacerbated by an increased number of convenience stores selling food products that are

low in nutrition and high in calories.31

Convenience stores and small grocers located in low-income urban areas typically charge

higher prices for nutritious products32 (making them less accessible). As a result, highly

processed and high calorie convenience foods are more affordable than healthy foods.33

Low-income neighborhoods and communities of color typically contain fewer grocery

stores and more fast food restaurants and convenience stores than more affluent and

largely Caucasian neighborhoods.34 As a result, highly processed and high calorie food is

more readily available.35

26CTR. FOR DISEASE CONTROL AND PREV., CDC VITAL SIGNS: ADULT OBESITY (August 2010), http://www.cdc.gov/VitalSigns/AdultObesity/index.html. 27 Id. 28 CTR. FOR DISEASE CONTROL AND PREV., A LOOK INSIDE FOOD DESERTS, http://www.cdc.gov/Features/FoodDeserts/ (last visited June 10, 2013). New York State Law defines a “food desert” as an area with limited access to affordable and nutritious food, particularly an area predominantly comprised of lower-income neighborhoods and communities, see N.Y. AGRIC. & MKTS. LAW §260. 29 Elizabeth Whalen & Michael Seserman, Looking for an Oasis in a Food Desert: Low Income New Yorkers Lack Access to Healthy Food 4 (2011), available at http://www.cancer.org/acs/groups/content/@eastern/documents/webcontent/acspc-031472.pdf. 30 See Lisa Powell et al., Associations Between Access to Food Stores and Adolescent Body Mass Index, 33 (4S) AM. J. PREV. MED. S301 (2007); Nicole I. Larson et al., Neighborhood Environments: Disparities in Access to Healthy Foods in the U.S., 36 AM. J. PREV. MED. 74 (2009); Kimberly Morland, et al., Supermarkets, Other Food Stores, and Obesity The Atherosclerosis Risk in Communities Study, 30(4) AM. J. OF PREV. MED. 333 (2006). 31 CALIFORNIA CTR. FOR PUB. HEALTH ADVOCACY, UCLA CTR. FOR HEALTH POLICY RESEARCH & POLICYLINK, DESIGNED FOR DISEASE: THE LINK BETWEEN LOCAL FOOD ENVIRONMENTS AND OBESITY AND DIABETES 2 (2008), available at http://www.policylink.org/atf/cf/%7B97c6d565-bb43-406d-a6d5-eca3bbf35af0%7D/DESIGNEDFORDISEASE_FINAL.PDF [hereinafter DESIGNED FOR DISEASE]. 32 Judith Bell & Marion Standish, Building Healthy Communities Through Equitable Food Access, 5(3) COMMUNITY DEVELOPMENT INVESTMENT REVIEW: FEDERAL RESERVE BANK OF SAN FRANCISCO 75, 78 (2009). 33 Id. 34DESIGNED FOR DISEASE, supra note 31, at 2. 35Id.








Residents with limited access to full-service food stores often rely on convenience stores

to supplement infrequent trips to full-service stores.36

[Percent] of [City] residents are overweight or obese.

[Percent] of [City] residents live [X miles] from a food retailer that routinely provides

nutritious food, including a variety of products from all staple food categories: fruits,

vegetables, whole grain products, lean protein and low fat dairy.

The travel distance required of these residents to access full-service food stores

contributes to traffic congestion and its associated pollution.

[Percent] of [City’s] residents are low-income.

[City] has a substantial interest in improving the health and welfare of its residents,

including reducing the incidence of chronic disease.

Improving access to and availability of nutritious foods is an important step in promoting

the health and general welfare of [City]’s residents.

Ensuring the availability to the public of nutritious food at a convenient location is an

essential land use goal that not only promotes the health and general welfare of residents,

but also reduces traffic and related congestion.

Regulating the use of land by food retailers through the zoning code will not unduly burden

legitimate business activities of retailers.

This Chapter complies with State Environmental Quality Review Act and the regulations of

the New York Department of Environmental Conservation.

It is the intent of the [City] to implement measures through this Chapter effective in

reducing the risk of chronic disease in [City] by improving residents’ access to nutritious

foods.

Statistics provided in this model should be updated to reflect the most recent data. The following

resources may provide community-specific statistics:

Center for Disease Control and Prevention, Division of Nutrition, Physical Activity, and

Obesity’s Overweight and Obesity. http://www.cdc.gov/obesity/

New York State Department of Health, Obesity Prevention webpage.


Trust for America’s Health, Key Health Data about New York.


United States Department of Agriculture (USDA) resources:

o The Food Environment Atlas presents county level statistics on food environment

factors influencing food choices and diet quality, including store and restaurant

proximity, food prices, and other community characteristics.

36 Sanae Inagami, et al., You Are Where You Shop: Grocery Store Locations, Weight, and Neighborhoods, 31(1) AM. J. PREV. MED., 10, 15 (2006).






http://www.ers.usda.gov/data-products/food-environment-atlas/go-to-the-

atlas.aspx#.Ua9h-djLWuI

o The Food Access Research Atlas provides data on food deserts by census tract.

http://www.ers.usda.gov/data-products/food-access-research-atlas/go-to-the-

atlas.aspx#.Ua9iSdjLWuI

As used in this Chapter, the following terms shall have the meanings indicated:

CONVENIENCE STORE means retail use between [200] and [5,000] square feet of Retail

Space primarily selling Food Products and non-Food consumer products intended for

preparation, use or consumption off-site that does not fit the definition of a Grocery Store,

Mobile Food Vending Unit, Restaurant, Small Food Retailer, Specialty Food Store and is

not a store or vendor selling primarily fruits and vegetables.

DAIRY PRODUCT means animal and plant-derived milk without added caloric

sweeteners, animal and plant derived low and nonfat yogurts and cheeses, including

lactose free products and dairy products defined pursuant to Agriculture and Markets Law

§46-A.

FOOD PRODUCT means all articles of food, drink, confectionary or condiment, whether

simple, mixed or compound, used or intended for human consumption, and shall also

include all substances or ingredients intended to be added to food for any purpose.

SMALL FOOD RETAILER means retail use between [200] and [5,000] square feet of

Retail Space primarily selling Food Products and non-Food consumer products intended

for preparation, use or consumption off-site, and dedicating at least [X]% of Retail Space

to a variety of Staple Foods, including [X]% of Retail Space to Perishable Foods. Food

Retailer does not include:

(1) Mobile Food Vending Units,

(2) Stores and vendors selling primarily fruits and vegetables,

(3) Specialty Food Stores,

(4) Grocery Stores,

(5) Restaurants primarily in the business of selling food for consumption on site.

GROCERY STORE means a food retail use with at least [5,000] square feet of Retail

Space offering at least a variety of staple foods.

MOBILE FOOD VENDING UNIT means a food service establishment located in a pushcart

or vehicle, self or otherwise propelled, used to store, prepare, display, service or sell food,

or distribute food free of charge to the public for consumption in a place other than in or on

the unit. Any such pushcart or vehicle s self or otherwise propelled, used to store, prepare,







display, service or sell food, or distribute food free of charge to the public for consumption

in a place other than in or on the unit. Any such pushcart or vehicle shall be deemed a

mobile food vending unit whether operated indoors or outdoors, on public, private or

restricted space.

PERISHABLE FOODS means any food that may spoil or otherwise become unfit for

human consumption because of its nature, type, or physical condition. Perishable food

includes, but is not limited to, fresh or processed meats, poultry, seafood, dairy products,

bakery products, eggs in the shell, fresh fruits or vegetables and foods that have been

packaged, refrigerated or frozen, or otherwise require refrigeration to remain

nonperishable. This definition shall not include game or wild game.

PERSON means any natural person, company, corporation, firm, partnership, business,

organization, or other legal entity.

PRODUCE means fruits or vegetables in their raw or natural state, whether offered whole

or pre-sliced.

PROTEIN means lean or low-fat meat and poultry, eggs, seafood, nuts, seeds, beans,

peas, and processed soy products.

RETAIL SPACE means the [floor area/ combined floor area and shelf space] of a store

where products, including non-food products, are displayed and offered for sale.

SPECIALITY FOOD STORE means a retail operation that sells or offers for sale specific or

limited types or groups of food products and does not carry a general variety of food as

does a Small Food Retailer, as defined under this section, as determined by the [Local

Zoning Board].

STAPLE FOODS means dairy products, produce, protein, and whole grains, whether

frozen or unfrozen.

WHOLE GRAINS means food in which whole grain is the primary ingredient by weight,

and which meets labeling requirements established by federal Food and Drug

Administration for making a health claim as a “whole grain food with moderate fat content.”

Municipalities should identify the zones or districts in which the use of land as a Small Food

Retailer would benefit the community. These areas may be zoned as residential areas or may be

located convenient to residential areas, ensuring that most residents have access to healthy and

nutritious foods. Additionally, communities should identify those zones in which the location of

Convenience Stores (i.e., retailers not offering a minimum amount of staple foods) would be a

detriment to the community and prohibit the use of land for such businesses in those zones.

The zoning amendment should identify existing land uses that do not comply with the new law

(such as a Convenience Store in an area where such uses are prohibited) as “nonconforming

uses”, subject to the municipality’s existing rules for maintaining such status. Such designation

permits continuing use of the land in a nonconforming manner on a temporary basis. If the proper

circumstances arise (e.g., the use is abandoned or changed, or the owner engages in



unauthorized expansion of the building), the municipality may terminate the nonconforming use

and bring that parcel of land into compliance with the zoning amendment.

For example, the amendment might include language that explicitly states:

Existing Convenience Stores: Any Convenience Store legally in existence in zones [A, B,

C] as of the effective date of this Chapter is considered a legal nonconforming use

pursuant to [cross reference local conditions for legal nonconforming use].

In the alternative a community may wish to ensure that nonconforming uses are terminated within

a finite time period. As discussed in the report, a municipality may establish a reasonable period

of time for a nonconforming use to terminate through amortization.37 Termination may comprise

the conversion of a nonconforming use to a conforming use (e.g., a Convenience Store

conversion to a Small Food Retailer in a particular zone) or the relocation of a nonconforming use

to a permitted district. Any municipality wishing to establish an amortization period for

nonconforming use should examine the land uses that will be affected by the zoning amendment

and identify a period of time that will be reasonable to conform to those uses. Keep in mind that

any landowner who can demonstrate substantial financial or other hardship may successfully

challenge the amendment’s application to her/him and ask a court to grant additional (or

indefinite) time to continue the nonconforming use.38

In light of this, a municipality wishing to establish an amortization period for the zoning

amendment should specifically permit owners of existing nonconforming uses to obtain an

exemption by demonstrating undue hardship and make it clear that the goal of the new law is to

ensure adequate distribution of nutritious food for the health and welfare of the community and

thus existing nonconforming uses may be able to make small changes to convert to a conforming

use (e.g., by offering a minimum amount of staple foods). For example, a municipality might

include a clause that states:

Existing Convenience Stores: Any Convenience Store legally in existence in zones [A, B,

C] as of the effective date of this Chapter is considered a nonconforming use and must

terminate within [X months] of the effective date of this Chapter. The owner of any such

use that is unable to terminate without undue hardship may apply to the [Zoning Board of

Appeals] for permission to continue as a legal nonconforming use pursuant to [cross

reference local conditions for legal nonconforming use].

Finally, a community might wish to include restrictions on retailers selling unhealthy products,

such as tobacco or alcohol. This might be achieved in this model by excluding retailers that sell

such goods from the definition of Small Food Retailer, thus restricting them to locate in certain

zoned districts. In the alternative, a community might simply include language restricting the

density or location of Small Food Retailers that also sell tobacco or alcohol in certain zones

37 Village of Valatie v. Smith, 83 N.Y.2d 396, 400-401 (1994). 38 Village of Valatie v. Smith, 83 N.Y.2d 396, 400-401 (1994) ( holding that amortization period is presumed valid unless owner can demonstrate that the loss suffered is so substantial that it outweighs the public benefit to be gained through the law).



(limiting the location or density restrictions to certain zones, rather than change the definition of

Small Food Retailer applying throughout the zoning code). For an example, see the zoning code

recently adopted by the City of Rochester, which requires stores selling certain alcoholic

beverages or tobacco be located at least 500 feet from each other and from other protected

areas.39

A community that does not include an amortization period in its zoning amendment might consider

offering incentives to existing retailers (such as Convenience Stores, in this model) to encourage

them to voluntarily offer a minimum inventory of staple foods (thereby eliminating nonconforming

uses in districts zoned for Small Food Retailers rather than Convenience Stores). Moreover, a

community might incentivize retailers to make other healthy changes. For example, a community

might offer a benefit or reward (not necessarily through the zoning code) for convenience stores

or small food retailers that reduce or eliminate certain unhealthy goods such as sugar-sweetened

beverages, foods high in sodium, tobacco products or alcoholic beverages. A community might

also choose to incentivize retailers to apply to accept federal benefits, such as SNAP or WIC, to

ensure healthier food options are available to low-income populations.

Incentives may take many forms—there is no single benefit that will work for all communities.

Communities must choose something valuable to local business owners, which is affordable for

the community. Zoning benefits might include:

A waiver from certain zoning requirements, such as minimum parking space requirements

(e.g., requirements that certain retail uses provide a minimum amount of parking); or

Density bonuses for developers that wish to include a Small Food Retailer or other healthy

retailing use as part of a larger project (e.g., permit the development to exceed height or

square footage limits in a zone based on the square foot of healthy inventory provided).

Non-zoning benefits or rewards might include:

Tax credits or other incentives;

Streamlined business permitting or reduced permit fees40;

Other financial incentives, such as those to assist with the acquisition of refrigeration

equipment or upgraded shelving and display cases; or

Free marketing or promotion as a healthy retailer.

Incentives for new or existing businesses should include technical assistance for healthy retailing,

as described in the report. Specifically, existing convenience stores and bodegas may not have

ready access to staples foods at affordable prices. Community programs that coordinate the

supply of staple foods, assist retailers in marketing the new inventory, or provide financial

assistance for equipment upgrades (e.g., refrigerators or shelving units) will increase the chances

39 City of Rochester, N.Y. Local Law §120-146. 40 See, e.g., City of Rochester, N.Y. Local law §120-208 (exempting healthier retailers from business permit requirement).



that the changes to the retail environment will be sustainable for the retailer and that the healthier

food options will be accessible to the community.

As with any local law, a zoning amendment must be adopted by the local legislature (e.g., city

council). Most municipalities have an agency or department in charge of examining land use in the

community, which reviews proposals and makes recommendations to the legislature prior to the

adoption of zoning law. Thus, community educators will ideally educate community members,

members of the zoning or planning board and legislators of the benefits of planning for the

development of healthier food environments throughout the community.

The process for changing the zoning code is similar to adopting changes to other local law. As

discussed in the report, a public hearing is required for any proposed change to local law. This

hearing provides an opportunity for community members and advocates to present information

about residents’ access to healthy and nutritious foods (or lack thereof) as well as evidence that

the proposed zoning change will improve access over the long term, thereby improving the health

and welfare of community members. This evidence may then be referenced in the “findings”

section of the proposed legislation to lay out the rationale for the new law.

Recall that the focus of any zoning change is land use, rather than regulation of business. These

land use changes could be used in combination with other regulation (such as licensing or

incentives designed to encourage existing retailers to carry a minimum inventory of staple foods)

to further improve access to healthy food options. Once the community understands the

relationship between access to nutritious foods and chronic disease, community members and

decision makers can decide the best solution (or solutions) to pursue.



Source: Minneapolis Department of Health and Family Support, Minneapolis Healthy Corner Store

Program: Making Produce More Visible, Affordable and Attractive, at Appendix 6 (2012), available

at http://www.health.state.mn.us/divs/oshii/docs/Mpls_Healthy_Corner_Store.pdf.









Program: Making Produce More Visible, Affordable and Attractive, at Appendix 5(2012), available at

http://www.health.state.mn.us/divs/oshii/docs/Mpls_Healthy_Corner_Store.pdf.




Store Name: Address:

Background Questions

1a. Are you a resident of the community in which your store is located?

Yes / No

1b. How long have you lived in this neighborhood?

2. How long have you owned this store?

0-2 years

3-5 years

6-10 years 10+ years

3a. Do you own other stores in Minneapolis?

Yes / No

3b. Where?

4. How many employees do you have (not including yourself)?

5. What is your typical weekly work schedule?

6a. Does your store currently advertise?

Yes / No

6b. Where and how often?

Product Offerings and Inventory System 7. Who orders the products for your store?

8. How do you make your product selections?

9. How do you track your inventory?

10. How do you track your product sales?



11. How many vendors do you have? Who do you work with?

12a. Do you or your staff currently order from any produce suppliers?

Yes / No

12b. Which Suppliers?

13a. If your supplier is Core-Mark, are you familiar with their “right size” program?

Yes / No

13b. What are you currently selling from this product line?

14. What, if any, challenges have you had in carrying fresh produce?

Sourcing affordable produce

Spoilage before it sells

Having adequate refrigeration

Other (please describe):

None

Customer-Base

15. Tell us a bit about your customer-base. Check all that apply.

Limited English Proficient (LEP). Which language(s)?

Neighborhood residents.

Seniors

Youth/ Students

Families

Commuters.

Other (Please describe):

16. What percent of your customers do you estimate are “regulars?”

less than 20% 20 - 40% 41 - 60% 61 - 80% 81 - 100%

17. Who shops at the store most frequently? (seniors, youth, workmen)?

18a. Do you have a way to track the number of customers that come in each day? Yes / No

18b. Please describe how:

19. On average, how many customers do you have each day?



under 50 50-100 101-150 151-200 over 200 All ages

20. What are the busiest days of the week?

Mon Tue Wed Thu Fri Sat Sun All the same

21. What % of your customers do you estimate use WIC vouchers? N/A

less than 20% 20 to 40% 41 to 60% 61 to 80% 81to 100%

22. What % of your customers do you estimate use EBT? N/A


Customer Preferences

23. What percent of your customers do you estimate comes in primarily for snack foods

(e.g. pop, chips, candy):


24. What percent of your customers do you estimate comes in primarily for staples like eggs,

milk, butter, fruits and vegetables:


25. What percent of your customers do you estimate comes in primarily for all of their food

needs:


26a. Do neighborhood residents ever comment about the fresh produce for sale here?

Yes / No

27b. What do they say?



27. What are your average sales of fresh produce (store over all versus fresh produce):

Sales Daily Weekly Monthly Annually

Fresh Produce

Potential enhancements for store 28a. Do you have any plans for any physical improvements to your store in the next year?

Yes / No

28b. Please Describe:

29a.Do you currently have any broken coolers that need to be removed?

Yes / No 29b. How many?

30. We will be developing a project plan for your store to enhance the visibility of fresh

produce of healthy foods. What are your top 34 interests from the list below?:

Assistance opportunity Owner’s top

3-4 interests

a. Cooking demonstrations with fresh fruits and vegetables

b. Recipe cards for healthy dishes that include the foods sold in your

store

c. Resources to purchase or update equipment or make other

internal improvements (baskets, small shelving)

d. Energy efficient lighting/refrigeration

e. In-store signage promoting healthy food options

f. External improvements (i.e. painting your store, selling fresh

produce outside)

g. Tracking and monitoring sales of healthy foods

h. Alternative sourcing strategies such as purchasing produce from

the farmer’s market, community garden, mini farmers market

i. Purchasing, pricing, and stocking healthy food affordably

(includes training on produce handling)

j. Strategically displaying fresh produce and healthy foods

k. Promoting healthy food choices to neighborhood residents



Store Owner Input on the Minneapolis Healthy Corner Store Program 31. What about this program made you interested in wanting to become a part of it?

32. Do you have any ideas to increase the availability, visibility and affordability of fresh

produce and healthy foods in your store?

33. Are you willing to work with youth, community based organizations, and/or

neighborhood residents on this project?

34. As part of your assistance, you will be receiving training on produce handling. Would you be available to attend a training with other store owners?

35. What concerns you the most about being a part of this program?

36. Are there any other questions you have about the program?

Comments:

Creating a Healthier Minneapolis

healthy eating + physical activity + smoke-free living

Minneapolis Department of Health and Family Support (MDHFS)

250 S. 4th St., Rm. 510, Minneapolis, MN 55415-1384 | www.ci.minneapolis.mn.us/dhfs

*Adapted from Delridge Corner Store Project

http://www.ci.minneapolis.mn.us/dhfs



The Philadelphia Healthy Corner Store Initiative provided small conversions that did not require large

investments to expand a stores ability to carry healthy products.109 The average cost was $1,390 and

allowed a store to introduce on average 44 new healthy products.110 The following is a copy of the list of

items used in mini-conversions; along with a costs break down from the Philadelphia Healthy Corner

Store Initiative.

SOURCE: THE FOOD TRUST, ET AL., PHILADELPHIA’S HEALTHY CORNER STORE INITIATIVE 2010-2012, 21

(2012), available at


109 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 3. 110 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 3. The costs of conversions ranged from $1,000 to $5,000. Id. at 7.








Decal provided to stores participating in the Philadelphia Healthy

Corner Store Network.111

Signs provided for refrigerators at stores receiving mini conversions as part of Philadelphia’s Healthy

Corner Store Network.112

Get Healthy Cards provided by the Philadelphia Corner Store Network,

displayed at stores for customers to take.113

111 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. C at 16. 112 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. C at 17. 113 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at app. C at 18.




Program: Making Produce More Visible, Affordable and Attractive, at Appendix 8(2012), available at









The $400 million Healthy Food Financing Initiative was established under the Obama

administration to bring healthy food retailers to underserved communities.1 Under this Initiative,

financing opportunities are available through federal agencies. As of the date of this report there

are 19 grant programs from the U.S. Departments of Treasury, Health and Human Services,

and Agriculture that focus on expanding access to nutritious food.2 Organizations that are

interested in these programs are encouraged to “form partnerships and develop sustainable

projects and integrated strategies” prior to applying in order to implement multiple programs that

provide greater resources to combat food deserts.3

The Food Trust is a national nonprofit working to ensure that “everyone has access to

affordable, nutritious food and information to make healthy decisions.”4 It partnered with

Philadelphia’s Department of Health to develop the Philadelphia Healthy Corner Store Network.5

The Food Trust also founded the Healthy Corner Stores Network that supports efforts to

increase healthy food availability in small stores in underserved communities nationwide.6

ChangeLab is a Californian organization that provides model legal policies, guides,

informational fact sheets, and other policy tools to assist communities in making a positive

change in their environment.7 Specific to financing, ChangeLab has developed a “Green for

Greens” guide providing “a general overview of economic development and ideas for how to

approach economic development agencies with healthy food retail proposals.”8 The guide,

which is available online, also provides an overview of economic development programs at the

local, state, and federal level that have been or could be used for healthy food retail projects.

1U.S. DEPT. OF HEALTH AND HUMAN SERVICES, OBAMA ADMINISTRATION DETAILS HEALTHY FOOD FINANCING

INITIATIVE, (2010), http://www.hhs.gov/news/press/2010pres/02/20100219a.html, (last visited July 15, 2013). 2AGRIC.MKTG. SERVICES, U.S. DEP’T OF AGRIC., GRANT OPPORTUNITIES, http://apps.ams.usda.gov/fooddeserts/grantOpportunities.aspx, (last visited July 15, 2013). 3 Id. 4 THE FOOD TRUST, WHO WE ARE, http://thefoodtrust.org/about (last visited July 15, 2013). 5 THE FOOD TRUST, WHAT WE DO: IN CORNER STORES, http://thefoodtrust.org/what-we-do/corner-store (last visited July 15, 2013). 6 Id.; See also HEALTHY CORNER STORES NETWORK, ABOUT US, http://www.healthycornerstores.org/about-us (last visited July 15, 2013). 7 CHANGELAB SOLUTIONS, ABOUT US, http://changelabsolutions.org/about-us (last visited July 15, 2013). 8 CHANGELAB SOLUTIONS, GREEN FOR GREENS: FINDING PUBLIC FINANCING FOR HEALTHY FOOD RETAIL, http://changelabsolutions.org/publications/green-for-greens (July 15, 2013).

http://www.hhs.gov/news/press/2010pres/02/20100219a.html

http://apps.ams.usda.gov/fooddeserts/grantOpportunities.aspx

http://thefoodtrust.org/about

http://thefoodtrust.org/what-we-do/corner-store

http://www.healthycornerstores.org/about-us

http://www.healthycornerstores.org/about-us

http://changelabsolutions.org/about-us

http://changelabsolutions.org/publications/green-for-greens



Healthy Food Access Portal, a website developed through a partnership between PolicyLink,

The Food Trust, and The Reinvestment Fund provides information for communities that want to

launch healthy food retail projects.9 It contains a resource called “Find Money,” which provides

information on current funding opportunities.10

New York State Department of Agriculture & Markets

The New York State Department of Agriculture & Markets administers the Pride of New

York program, which promotes and supports food products grown and processed in New

York.11 A New York community implementing either the licensing system or voluntary

certification program may encourage stores to participate and utilize program benefits

including marketing assistance to highlight the availability of locally sourced produce and

other products at participating stores.12

New York Healthy Food & Healthy Communities Fund (HFHC)

This program provides loans and grants to food retailers for land acquisition and

predevelopment, construction or rehabilitation, equipment and infrastructure.13 Stores must

be located in underserved areas, defined as (1) low or moderate income census tracts (or

food market sites with customer bases of 50% or greater living in low-income census tracts),

and (2) having below average food market density.14 Stores that apply must accept SNAP

and WIC.15 A certification program could consider assisting individual stores with HFHC

applications to fund improvements to a store’s physical space to improve ability to carry and

promote healthier food.

9 HEALTHY FOOD ACCESS PORTAL, HEALTHYFOODACESS.ORG, http://www.healthyfoodaccess.org/home?destination=home (last visited July 10, 2013). 10 HEALTHY FOOD ACCESS PORTAL: FIND MONEY, HEALTHYFOODACESS.ORG, http://www.healthyfoodaccess.org/find-money e (last visited July 10, 2013). 11 PRIDE OF NEW YORK, PRIDEOFNY.COM, http://www.prideofny.com/ (last visited July 10. 2013). 12 Id. 13 NEW YORK HEALTHY FOOD AND HEALTHY COMMUNITIES FUND, FUND OVERVIEW, 1 (2012) available at http://www.liifund.org/wp-content/uploads/2012/01/NY-HFHC-Overview-Terms_2012-01-17.pdf. 14 Id. 15 Id.

http://www.healthyfoodaccess.org/home?destination=home

http://www.healthyfoodaccess.org/find-money



http://www.prideofny.com/

http://www.liifund.org/wp-content/uploads/2012/01/NY-HFHC-Overview-Terms_2012-01-17.pdf



Empire State Development Agency & Subsidiaries

New York State’s Empire State Development (ESD) is the state’s economic development

agency whose mission is to “promote a vigorous and growing economy, encourage the

creation of new job and economic opportunities, increase revenues to the State and its

municipalities, and achieve stable and diversified local economies.”16 ESD has a number of

programs that target economic development including corporate outreach, technical

assistance to businesses, and financial assistance.17 It has ten regional offices throughout

the estate. 18 ESD offers assistance through its many programs.19 Working with regional

councils can facilitate the application process for potential funding opportunities through

ESD.20 An example of working with an economic development agency can be found in

Philadelphia where the Pennsylvania Department of Community and Economic

development has provided funding to convert an additional 200 stores.21

Local Political Bodies

Working with local legislative bodies on a voluntary program provides an avenue for strong

local government support and potential funding from local government to assist in the

program.22

In-Kind Donations

In-kind donations from the public and private businesses can be useful for the program.

Local businesses can provide items needed for mini store conversion, donate printing for

marketing materials, and so forth.23

16 N.Y. EMPIRE STATE DEV., ABOUT US, ESD.NY.GOV, http://esd.ny.gov/AboutUs.html (last visited July 10, 2013). 17 N.Y. EMPIRE STATE DEV., EMPIRE STATE DEVELOPMENT SERVICES, ESD.NY.GOV, http://esd.ny.gov/AboutUs/Services.html (last visited July 10, 2013). 18 N.Y. EMPIRE STATE DEV., REGIONAL OVERVIEWS, ESD.NY.GOV, http://esd.ny.gov/RegionalOverviews.html (last visited July 10, 2013). 19 N.Y. EMPIRE STATE DEV., BUSINESS PROGRAMS, ESD.NY.GOV, http://esd.ny.gov/BusinessPrograms.html (last visited July 10, 2013). 20REGIONAL ECONOMIC DEV., COUNCILS, REGIONALCOUNCILS.NY.GOV., http://regionalcouncils.ny.gov/ (last visited July 10, 2013). 21 PHILADELPHIA’S HEALTHY CORNER STORE, supra note 10, at 14. 22 See CHRISTINE FRY, supra note 4, at 14. 23 See CHRISTINE FRY, supra note 4,at 16.

http://esd.ny.gov/AboutUs.html

http://esd.ny.gov/AboutUs/Services.html

http://esd.ny.gov/RegionalOverviews.html

http://esd.ny.gov/BusinessPrograms.html

http://regionalcouncils.ny.gov/



Providing legal expertise to support policies benefiting the public health.

The Public Health and Tobacco Policy Center is a legal research Center within the Public Health

Advocacy Institute. Our shared goal is to support and enhance a commitment to public health in individuals

and institutes who shape public policy through law. We are committed to research in public health law,

public health policy development; to legal technical assistance; and to collaborative work at the intersection

of law and public health. Our current areas of work include tobacco control and chronic disease prevention.

We are housed at the Northeastern University School of Law in Boston, Massachusetts.

What We Do

Research & Information Services

• analyze and contextualize the legal

landscape and scientific evidence base for

emerging issues in tobacco control and

other public health policy areas

• develop model policies for implementation at

the organizational, municipal, or state level

• compile and analyze policy initiatives and

litigation related to impactful health policy

Legal Technical Assistance

• assist local governments with identifying

effective, feasible policy responses

addressing public health concerns

• draft tailored policies to address

municipalities’ unique concerns

• assist local governments with policy

enactment and implementation

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• conduct in-person and online trainings that

convey the legal landscape for promising

policy interventions, their potential impact on

a public health problem, best practices,

common obstacles, and lessons learned

• facilitate strategic planning for public health

agencies and other regulators

• maintain website featuring technical reports,

model policies, fact sheets, toolkits, story

maps, summaries of tobacco control laws

• impact development of national and federal

tobacco control laws and regulations,

including through collaboration with partners

and amicus curiae briefs

Find Us Online www.tobaccopolicycenter.org

The Policy Center’s website provides information

about local policy interventions to improve

population health. We highlight factors driving

tobacco use and policy solutions addressing these

factors; authority and rationale for implementing

local tobacco controls, and relevant federal, state,

and local policies in effect in New York State. We

provide contextualized summaries of recent court

cases affecting tobacco product and sales

regulation, newsletter summaries of relevant current

issues, and more. The website provides convenient

access to the Policy Center’s technical reports,

toolkits, model policies, fact sheets, presentations,

and story maps.

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updates and current events.

Requests for Legal Technical Assistance The Public Health and Tobacco Policy Center

provides legal background and policy guidance

for research, development, and implementation

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not represent clients or provide legal advice.

The Policy Center is a resource for the New

York tobacco control community. Individuals

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governments may contact us with tobacco-

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Documents

June 2014. All rights reserved. Public Health and Tobacco ... · an association between access to healthy food and the prevalence of overweight and obesity. Specifically, studies